ROBERT LEE FENN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Lee Fenn was convicted by jury of attempted burglary with assault and battery on a law enforcement officer. On appeal, Fenn challenged the sufficiency of evidence on both counts. The court affirmed the convictions but vacated the 14-year sentence on the attempted burglary count as exceeding the statutory maximum of five years.
The convictions for attempted burglary and battery on a law enforcement officer are affirmed. However, the 14-year sentence on the attempted burglary conviction is vacated as exceeding the statutory maximum penalty of five years, and the case is remanded for resentencing on that count.
[1] A conviction for attempted burglary is not enhanced by the commission of an assault.
[2] An attempt to commit burglary is a third-degree felony, punishable by a maximum of five years imprisonment.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although appellant was charged with burglary, the jury found him guilty of attempted burglary, and on that offense, there is no enhancement of the crime even if an assault takes place.”
Establishes that attempted burglary lacks the assault enhancement available for burglary under Florida law
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Join FLexlaw to unlock all legal intelligenceAppellant Fenn was charged with burglary with assault on one count and battery on a law enforcement officer on a second count. The jury found him guil…
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ORFINGER, Judge.
Appellant appeals his conviction by a jury of attempted burglary with an assault1 on one count, and of battery on a law enforcement officer2 on the second count.
Appellant was sentenced to imprisonment for 14 years on the attempted burglary count and to a four year concurrent term on the battery count. He appeals, questioning the sufficiency of the evidence on both counts. We affirm the convictions.
The State concedes that there was insufficient proof of an assault on the police officer named in the first count, because there was no evidence that appellant ever did anything to create a well founded fear in the officer that any violence was imminent. However, since the jury found appellant guilty of attempted burglary, the question of whether an assault was proved becomes moot.
Under section 810.02, Florida Statutes (1979), burglary is a first degree felony if in the course of committing an offense the offender commits an assault on any person. Although appellant was charged with burglary, the jury found him guilty of attempted burglary, and on that offense, there is no enhancement of the crime even if an assault takes place. Section 777.04(4)(c), Florida Statutes (1979), provides that the attempt to commit any burglary is a felony of the third degree, which is a crime punishable by a maximum term of five years imprisonment.3 Crook v. State, 385 So. 2d 1136 (Fla. 1st DCA 1980); McQuay v. State, 368 So. 2d 908 (Fla. 1st DCA 1979).
Thus we note fundamental error in sentencing appellant on the first count to a term of imprisonment longer than five years. See Butler v. State, 343 So. 2d 93 (Fla. 3d DCA 1977).
The judgments of conviction and the sentence on the count of battery on a law enforcement officer are affirmed. The fourteen year sentence on the attempted burglary conviction is vacated and the case is remanded to the trial court for resentencing on that count. Appellant shall be present for resentencing.
AFFIRMED in part; REVERSED in part, and REMANDED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur. . § 810.01(2), Florida Statutes (1979).
. §§ 784.03 and 784.07, Florida Statutes (1979). This was not the same police officer on whom the assault was allegedly committed.
. § 775.082(3)(d), Fla.Stat. (1979).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Flemming v. State, 415 So. 2d 824 (Fla. 3d DCA 1982)…1980), we do agree — as the state concedes — that his sentence for attempted burglary of an occupied dwelling must, after remand, be reduced from fifteen to five years imprisonment. Sec. 777.-04(4)(c), 775.082(3)(d), Fla.Stat. (1979); Fenn v. State, 398 So. 2d 1004 (Fla. 5th DCA 1981). With that exception, the judgments and sentences under review are affirmed. Affirmed as modified.…
Authorities Cited
- Butler v. State, 343 So. 2d 93 (Fla. 3d DCA 1977)
- Flenoil Crook v. State, 385 So. 2d 1136 (Fla. 1st DCA 1980)
- McQUAY v. State, 368 So. 2d 908 (Fla. 1st DCA 1979)