HORACE LEE SPEED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Speed was convicted of first-degree burglary and sexual battery and sentenced to 75 years for each, running concurrently. The court affirmed both convictions but vacated the sentence for sexual battery because the sexual battery was an assault element indispensable to proving first-degree burglary, making it a lesser included offense for sentencing purposes under Florida law.
A defendant may be convicted of both first-degree felony burglary and sexual battery when the sexual battery is the predicate assault, but cannot be sentenced for both offenses. The sexual battery is a lesser included offense for sentencing purposes under the multiple offense statute.
[1] A conviction for first-degree felony burglary requires proof that the defendant committed an assault or was armed with a dangerous weapon during the commission of the bur…
[2] When a predicate offense, such as sexual battery, is an indispensable element of a greater offense, such as first-degree felony burglary, a defendant may not be sentenced…
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Join FLexlaw to unlock all legal intelligence“In order to convict appellant of the charged offense, the state had to prove that appellant committed a sexual battery upon the victim. Thus, the finding that appellant committed a sexual battery was indispensable to the first-degree felony burglary conviction.”
Establishes that sexual battery was a necessary element of the first-degree burglary charge
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Join FLexlaw to unlock all legal intelligenceHorace Lee Speed was charged with and convicted of first-degree felony burglary and sexual battery. The first-degree burglary charge included an alleg…
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[*981] RYDER, Judge.
Appellant’s counsel filed an Ander’s brief1 in this case where appellant was sentenced to seventy-five years for first-degree burglary and seventy-five years for sexual battery, both sentences to run concurrently. However, for reasons expressed below we vacate his seventy-five year sentence for sexual battery while affirming his convictions for burglary and sexual battery.
Burglary may be a first, second, or third-degree felony, depending upon the allegata and probata. § 810.02, Fla.Stat. (1979). To convict a defendant of first-degree felony burglary, the state must plead and prove not only the essential elements of burglary as defined in section 810.02(1), but also that, in the course of committing the burglary, the defendant either made an assault upon a person or was armed or armed himself within the structure with explosives or a dangerous weapon.
Here, the state charged appellant with first-degree felony burglary by including in the charging language the allegation that, during the course of the burglary, appellant made an assault, to wit: sexual battery upon the victim. In order to convict appellant of the charged offense, the state had to prove that appellant committed a sexual battery upon the victim. Thus, the finding that appellant committed a sexual battery was indispensable to the first-degree felony burglary conviction.
Our supreme court recently held in State v. Hegstrom, 401 So. 2d 1343 (Fla.1981), that where the crime of first-degree murder committed during the course of a robbery requires, by definition, proof of the predicate robbery, the latter is necessarily an offense included within the former. The court then reasoned that Hegstrom could not be sentenced both for felony murder and for the underlying felony under the legislative intent test used in Whalen v. United States, 445 U.S. 684, 63 L.Ed.2d 715, 100 S.Ct. 1432 (1980), and section 775.021(4), Florida Statutes (1979), which states:
Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode. ...
The court concluded that while Hegstrom was barred from multiple sentences, there was no bar to multiple convictions. See also Sands v. State, 403 So. 2d 1090 (Fla.3d DCA 1981).
In our case, appellant cannot be sentenced both for first-degree felony burglary and sexual battery, but can be convicted and adjudicated guilty of both. By doing this we recede from that portion of McRae v. State, 383 So. 2d 289 (Fla.2d DCA 1980), which holds that a person cannot be convicted of both burglary and sexual battery when the sexual battery is indispensable to the first-degree burglary conviction.
Accordingly, appellant’s convictions and judgments of guilt for first-degree burglary and sexual battery are affirmed, as is the sentence of seventy-five years imprisonment for first-degree burglary, but his concurrent sentence of seventy-five years for sexual battery is vacated.
BOARDMAN, Acting C. J., and GRIMES, J., concur. . In the instant case, the public defender’s office filed this brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating there was no meritorious argument to show the trial court committed reversible error.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wicker v. State, 445 So. 2d 583 (Fla. 2d DCA 1983)…was armed or armed himself within the dwelling with a deadly weapon. Thus, convictions of and sentences for both first-degree burglary and the indispensable sexual battery raised possible double jeopardy issues. See generally McRae; Speed v. State, 410 So. 2d 980 (Fla. 2d DCA 1982). On this ground, the court in Wicker vacated the defendant’s involuntary sexual battery conviction. In the instant case, the information alleged a burglary with assault (involuntary sexual battery) and that defendant carried a de…
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Wicker v. State, 445 So. 2d 581 (Fla. 2d DCA 1983)…plained or receded from Hegstrom to the extent that Hegstrom was interpreted to permit multiple convictions for lesser included offenses in single trial settings. 437 So. 2d at 1060. As a result, the then correct act of this court in Speed v. State, 410 So. 2d 980 (Fla. 2d DCA 1982), in receding from McRae, is invalidated and McRae is therefore reinstated. Sec also State v. Harris, 439 So. 2d 265 (Fla. 2d DCA 1983).…
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James Ray Parish v. State, 249 So. 3d 734 (Fla. 2d DCA 2018)…w at the time he committed the offenses he could not have been sentenced for both first-degree burglary and involuntary sexual battery where the sexual battery conviction was the predicate offense for the burglary conviction. See Speed v. State, 410 So. 2d 980, 981 (Fla. 2d DCA 1982) (relying on State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)). The postconviction court interpreted Parish's claim as one challenging the involuntary sexual battery conviction, determined that such a claim could only be rai…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Whalen v. United States, 445 U.S. 684 (U.S. 1980)
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- McRAE v. State, 383 So. 2d 289 (Fla. 2d DCA 1980)
- Sands v. State, 403 So. 2d 1090 (Fla. 3d DCA 1981)