LEROY GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's convictions for first-degree burglary, aggravated battery, and sexual battery are affirmed because aggravated battery and sexual battery are not lesser included offenses of the burglary charge, which required only proof of an assault committed during the burglary.
A defendant may be convicted and sentenced on separate counts of first-degree burglary, aggravated battery, and sexual battery where the burglary charge requires proof only of an assault committed during the burglary, not proof of the other offenses.
[1] Aggravated battery and sexual battery are not lesser included offenses of first-degree burglary when the burglary charge requires proof only of an assault committed durin…
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Join FLexlaw to unlock all legal intelligenceAppellant was indicted and convicted on three counts: first-degree burglary (entering a structure with intent to commit sexual battery and assaulting …
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THOMPSON, Judge.
The appellant was indicted, tried, convicted, and sentenced on all three counts of an information charging: (1) first degree burglary; (2) aggravated battery; and (3) sexual battery. The burglary count of the information charged that the appellant entered a structure with the intent to commit an offense therein, to wit: sexual battery, and in the course of committing the offense the defendant did make an assault upon the victim by striking her about the head a,nd face with a large glass decanter in violation of §§ 810.02(1), .02(2)(a), Fla.Stat. The burglary count therefore alleges a first degree burglary which required proof of the assault. It did not require proof of the offenses of aggravated battery or sexual battery, which were Counts II and III. These two offenses require elements of proof different from the assault.
Appellant contends he cannot be convicted and sentenced of the aggravated battery and sexual battery charges. We disagree. It was not necessary to prove the offense of aggravated battery or sexual battery in order to prove the offense of burglary. It was only necessary to prove the commission of the assault during the burglary to sustain the burglary conviction and therefore neither of the offenses charged in Counts II and III were lesser included felonies. The convictions and sentences on all three counts of the information are affirmed.
ERVIN and BOOTH, JJ., concur.