FREDDIE LEE JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The defendant was convicted of burglary of the highest degree (including assault) and attempted sexual battery based on the same assault. The court reversed the attempted sexual battery conviction because it was a necessarily included offense within the burglary conviction, and duplicative convictions on the same facts are impermissible.
A conviction for attempted sexual battery cannot stand where that offense constitutes the same assault used to prove burglary of the highest degree, as this results in an impermissible duplicative conviction. The attempted sexual battery conviction was reversed.
[1] A conviction for burglary, as defined by section 810.02(2)(a), Florida Statutes (1979), which includes an assault, precludes a separate conviction for the necessarily inc…
[2] A conviction for attempted sexual battery may not stand when the same assault is used to prove the highest degree of burglary.
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“It was error for the trial court to convict the appellant of the crime of attempted sexual battery because that crime was the same assault used to prove the highest form of burglary.”
The core holding establishing that duplicative convictions based on identical facts are improper.
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Join FLexlaw to unlock all legal intelligenceJackson entered a college women's dormitory and assaulted various female residents, including grabbing one resident and attempting to sexually assault…
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DAUKSCH, Chief Judge.
This is an appeal from a judgment in a burglary and assault case.
The issue on appeal is whether a conviction for burglary under section 810.02(2)(a), Florida Statutes (1979), precludes the conviction for the necessarily included assault. That statute defines burglary of the highest degree as being a burglary which includes an assault upon a person; it subjects the perpetrator to a term of years not exceeding life imprisonment.
The facts of the case are that the appellant entered a college women’s dormitory, and various occupied rooms and assaulted various female residents including grabbing one and attempting to sexually assault another. The state charged him in four counts. One, burglary of a dwelling with intent to commit assault, battery or sexual battery on K. G. Two, burglary of a dwelling with intent to commit an assault, battery or sexual battery “and did make an assault upon P. B.” Three, attempted sexual battery upon P. B. (the same person as count two). Four, battery on D. D.
We are primarily concerned with counts two and three because the same facts which proved count three also helped prove count two. The assault mentioned in count three is the assault mentioned in count two — the facts at trial established that.
It was error for the trial court to convict the appellant of the crime of attempted sexual battery because that crime was the same assault used to prove the highest form of burglary. Without the proof of the lesser attempted sexual battery the appellant could not have been convicted of anything greater than burglary of a dwelling (or burglary of an occupied structure) which is a fifteen year felony. McRea v. State, 383 So. 2d 289 (Fla. 2d DCA 1980). See also State v. Pinder, 375 So. 2d 836 (Fla. 1979).
We do note, however, that had the state merely pleaded the case properly both convictions would have stood. "The state could have pleaded one count as the burglary with assault on D. D. because after he entered the structure of the dormitory he encountered D. D. in the hallway and grabbed her. Then the state could have charged the attempted sexual battery upon P. B.
The conviction of attempted sexual battery is
REVERSED.
ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.
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Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)…akes two offenses “the same offense” for double jeopardy but the absence of at least one different element. The focus on common elements is just ariother erroneous way of thinking in terms of the single transaction rule. See, e.g., Jackson v. State, 404 So. 2d 369 (Fla. 5th DCA 1981). Ianelli, cited in the footnote to the above quote from Illinois v. Vitale, makes it clear that if the Blockburger test is met, convictions and punishments for each of two crimes is authorized “notwithstanding a substantial overl…
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O'Hara v. State, 448 So. 2d 524 (Fla. 5th DCA 1984)…). . Bell v. State, 437 So. 2d 1057 (Fla.1983). . See Giddings v. State, 442 So. 2d 336 (Fla. 5th 1983); Madry and Banks v. State, 448 So. 2d 8 (Fla. 5th DCA 1984); Hedges v. State, 448 So. 2d 5 (Fla. 5th DCA 1984). . See, e.g., Jackson v. State, 404 So. 2d 369 (Fla. 5th DCA 1981), quashed, 417 So. 2d 985 (Fla. 1982); Stone v. State, 402 So. 2d 1222 (Fla. 5th DCA 1981); James v. State, 399 So. 2d 424 (Fla. 5th DCA 1981). . See, e.g., Walker v. State, 386 So. 2d 630 (Fla. 5th DCA 1980). . Monarca v. State…
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Savino v. State, 447 So. 2d 411 (Fla. 5th DCA 1984)…e can be convicted for both offenses, he cannot constitutionally be sentenced for both offenses, citing State v. Hegstrom, 401 So. 2d 1343 (Fla.1981). This is exactly the same argument that was accepted and applied by this court in Jackson v. State, 404 So. 2d 369 (Fla. 5th DCA 1981), and in many other cases.1 However, essentially it is an erroneous double jeopardy analysis based on concepts underlying the single transaction rule. The “single factual transaction” aspect of that rule never provided a correct a…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- McRAE v. State, 383 So. 2d 289 (Fla. 2d DCA 1980)