RICHARD LEE DART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the trial court's judgment, holding that sexual battery is not subsumed within burglary with intent to commit assault based on the charging information filed.
Sexual battery is not subsumed in the charge of burglary with intent to commit assault when the charging allegations for burglary do not specify that the assault was committed by sexual battery.
[1] Sexual battery is not subsumed within burglary with intent to commit assault unless the charging allegations for burglary specifically allege that the assault was committ…
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Join FLexlaw to unlock all legal intelligenceAppellant Dart was charged with sexual battery and burglary with intent to commit an assault. The State filed an information with the court specifying…
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ON MOTION FOR REHEARING/MOTION TO RECALL MANDATE
PER CURIAM.
The Motion for Belated Rehearing/Motion to Recall Mandate filed more than fifteen (15) days from the date of the issuance of the decision in this cause is stricken as untimely. Fla.R.App.P. 9.330(a); Rogers v. State Farm Mut. Automobile Ins. Co., 390 So. 2d 138 (Fla. 5th DCA 1980). However, upon its own motion, the Court has deter mined to reconsider its earlier decision, 415 So. 2d 846, rendered in this cause and has withdrawn the mandate.
The State has now filed with this Court the information accusing appellant of sexual battery and burglary with intent to commit an assault, and it would serve no useful purpose to remand the case to the trial court for that court to attach the information to its order. This accusatory pleading conclusively reveals that the charge of sexual battery is not subsumed in the charge of burglary with intent to commit an assault, for the charging allegations of latter offense do not state that appellant assaulted the victim by committing a sexual battery. See McElveen v. State, 415 So. 2d 746 (Fla. 1st DCA 1982).
There being no need for further proceedings by the trial court, we affirm the judgment of the trial court.
AFFIRMED.
McCORD, MILLS and SHIVERS, JJ., concur.
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City of Cooper City/Florida Mun. Ins. Trust/Florida League of Cities v. Farthing, 905 So. 2d 925 (Fla. 1st DCA 2005)…trike appellee’s motion for rehearing and/or clarification as untimely under Florida Rule of Appellate Procedure 9.330(a). On our own motion, however, we reconsider and withdraw our previous opinion,1 and substitute the following. See Dart v. State, 417 So. 2d 1165 (Fla. 1st DCA 1982). This is a workers’ compensation appeal from a final order determining appel-lee/claimant Ronald Farthing’s condition, chronic obstructive pulmonary disease (COPD), a compensable occupational disease. Because we find no competen…
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Bayron v. State, 921 So. 2d 719 (Fla. 3d DCA 2006)…THENBERG, Judge. We withdraw the opinion filed on January 18, 2006 on our own motion and substitute the following. See Johnson v. State, 184 So. 2d 161 (Fla.1966); City of Cooper City v. Farthing, 905 So. 2d 925 (Fla. 1st DCA 2005); Dart v. State, 417 So. 2d 1165 (Fla. 1st DCA 1982). Pedro P. Bayron appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that the State failed to file any notice of its intent to seek habitual felony…
Authorities Cited
- McELVEEN v. State, 415 So. 2d 746 (Fla. 1st DCA 1982)
- Smith v. State, 415 So. 2d 846 (Fla. 1st DCA 1982)
- In re Matter of Attorney's Fees Awarded IN State OF Fla. v. Dale M. Warman. Mitchell J. Beers, 415 So. 2d 846 (Fla. 4th DCA 1982)
- Corwin v. Fink, 390 So. 2d 138 (Fla. 5th DCA 1980)