KENNETH COLWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Kenneth Colwell appealed his convictions for burglary of an occupied dwelling and sexual battery, challenging the sufficiency of the burglary charge and the admission of similar fact evidence. The court found the burglary information was deficient because it failed to allege an assault, which was necessary to support a first-degree felony charge, and therefore reversed the sentence and remanded for resentencing.
The court held that the information was deficient because it failed to allege an assault in the course of committing the burglary, which is necessary to elevate burglary to a first-degree felony. Each count of an information stands alone and is the sole vehicle by which the court obtains jurisdiction and a limit upon that jurisdiction. The court affirmed the convictions but reversed the sentence and remanded for resentencing.
[1] A burglary of an occupied dwelling, without an allegation of assault in the course of the commission, is a felony of the second degree.
[2] Each count of an information must independently allege sufficient facts to support the charge and the potential sentence.
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“Each count of an information stands on its own, is the only vehicle by which the court obtains its jurisdiction and is a limit upon that jurisdiction.”
Establishes the fundamental principle that each count must independently support the charges and sentences imposed
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceColwell was charged with burglary of an occupied dwelling, two counts of sexual battery, and battery. He was convicted after a jury verdict based on e…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Williams Rule (Similar Fact Evidence) cases and more on FLexlaw
DAUKSCH, Judge.
This is an appeal from convictions for burglary of an occupied dwelling and sexual battery. The appellant was charged in four counts with the burglary, two sexual batteries and battery. The appellant was convicted after a jury verdict básed upon evidence that he illegally entered an apartment and twice committed sexual battery and once committed battery upon one woman.
The first point on appeal asserts that the information charging the burglary was insufficiently alleged to support a life sentence as a felony of the first degree. § 810.02, Fla.Stat. (1978); § 775.082, Fla. Stat. (1978). We agree the information is deficient; it merely alleges burglary of an occupied dwelling, which is a felony of the second degree punishable by no more than fifteen years. It does not allege an assault was made in the course of committing the burglary. The fact that no objection was made below is to no avail, nor is it of any importance that appellant was charged in other counts of the information with making an assault upon the occupant of the building. Each count of an information stands on its own, is the only vehicle by which the court obtains its jurisdiction and is a limit upon that jurisdiction. To sentence for a crime more serious than the statute under which the crime is charged is fundamental error. Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA 1984). The sentence is reversed and this cause remanded for resentencing.
For his second point on appeal appellant urges the court erred in admitting similar fact evidence under the Williams Rule. Williams v. State, 110 So. 2d 654 (Fla.1959). The admission of the evidence was quite tenuous and were it not for the overwhelming proof of guilt from the other evidence and the lack of a sufficient objection at trial we would order a new trial. State v. Murray, 443 So. 2d 461 (Fla. 4th DCA 1984). Convictions affirmed; sentence reversed, remanded.
COBB, J., concurs.
COWART, J., concurs specially with opinion.
COWART, Judge,
concurring specially:
I concur with the qualification contained in the special concurring opinion in Cochenet v. State, 445 So. 2d 398 (Pla. 5th DCA 1984). See Averheart v. State, 358 So. 2d 609 (Pla. 1st DCA 1978).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
COX v. State, 530 So. 2d 464 (Fla. 5th DCA 1988)…of judgment of conviction against Cochenet under this count for a first-degree felony was reversed and the cause was remanded for the entry of judgment for a second-degree felony pursuant to section 810.02(3), Florida Statutes. In Colwell v. State, 448 So. 2d 540 (Fla. 5th DCA 1984), Colwell was convicted of first-degree burglary and sexual battery. On appeal, this court agreed with Colwell that the information was insufficient to charge first-degree burglary: The first point on appeal asserts that the info…
-
Cochran v. State, 899 So. 2d 490 (Fla. 2d DCA 2005)…when the count of the information charging the offense does not allege the use of a firearm, even though another count of the same information charging a different offense alleges the use of a firearm in the same criminal episode); Colwell v. State, 448 So. 2d 540, 541 (Fla. 5th DCA 1984) (holding that “[e]ach count of an information stands on its own, is the only vehicle by which the court obtains its jurisdiction, and is a limit upon that jurisdiction”). Because Mr. Cochran is benefitting from this rather…
-
Davis v. State, 26 So. 3d 647 (Fla. 2d DCA 2010)…count of the information charging the offense does not allege the en [*649] hancement, even though another count of the same information charging a different offense committed in the same criminal episode alleges the enhancement); Colwell v. State, 448 So. 2d 540, 541 (Fla. 5th DCA 1984) (holding that “[e]ach count of an information stands on its own, is the only vehicle by which the court obtains its jurisdiction[,] and is a limit upon that jurisdiction”). Our record contains an order from the circuit cour…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA 1984)
- Averheart v. State, 358 So. 2d 609 (Fla. 1st DCA 1978)
- State v. Murray, 443 So. 2d 461 (Fla. 4th DCA 1984)