WILLIAM EUGENE BOWERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Bowers was convicted of two counts of home-invasion robbery, burglary with assault, and two counts of kidnapping. The appellate court vacated the home-invasion robbery convictions as duplicative and improper under Florida law, reversed the restitution order, but affirmed the remaining convictions.
The court vacated both home-invasion robbery convictions because only one count of home-invasion robbery could be properly charged from a single entry into one dwelling, and because burglary with assault is a greater included offense that subsumes home-invasion robbery. The court also reversed the restitution order because it was imposed without oral pronouncement or opportunity for the defendant to be heard on the amount.
[1] A single entry into a dwelling with the intent to commit robbery and the subsequent robbery of one or more occupants constitutes only one count of home-invasion robbery.
[2] The crime of burglary with assault is subsumed by the offense of home-invasion robbery.
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“the statute clearly contemplates a single entry into a dwelling and the ensuing robbery of one or more occupants. Accordingly, only one count of home-invasion robbery properly could be charged.”
Establishes that multiple counts of home-invasion robbery cannot arise from a single entry into one dwelling, requiring vacation of one conviction.
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Join FLexlaw to unlock all legal intelligenceAppellant and an accomplice forced their way into a single dwelling using a gun, held the two occupants (Ginder and Elmore) and their child at gunpoin…
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PER CURIAM.
Appellant raises seven issues in regard to his convictions and sentences in the instant case. Appellant was convicted as charged of two counts of home-invasion robbery (one count as to each victim), one count of burglary with assault, and two counts of kidnapping. We affirm in part and reverse in part.
Using a gun, appellant and an accomplice forced their way into the home of Ginder and Elmore and forced them and their young child to lie face down on the floor. Appellant threatened to pistol whip Ginder and to cut off his fingers if he did not cooperate. Gin-der complied, and the two men took money and other items in the house. Before leaving, the robbers tied up both Ginder and Elmore.
We vacate appellant’s convictions for home-invasion robbery. Initially, Appellant was convicted of two counts of home-invasion robbery that arose out of appellant’s entry into a single dwelling occupied by its two owners. Section 812.135, Florida Statutes (1995), defines home-invasion robbery as “[a]ny robbery that occurs when the offender enters a dwelling with the intent to commit a robbery, and does commit a robbery of the occupants therein.” As the state properly concedes, the statute clearly contemplates a single entry into a dwelling and the ensuing robbery of one or more occupants. Accordingly, only one count of home-invasion robbery properly could be charged. Second, the home-invasion robbery convictions are vacated because the crime of burglary with assault is subsumed by the offense of home-invasion robbery. See §§ 775.021, 810.02(1), 810.02(2)(a), 812.135, 812.13(1), Fla.Stat. (1995). See also Black v. State, 677 So. 2d 22 (Fla. 4th DCA 1996); Elmy v. State, 667 So. 2d 392 (Fla. 1st DCA 1995). In the instant case the subsumed crime, burglary with assault, is a greater offense. We therefore vacate the conviction for home-invasion robbery. In addition, on remand, the judgment must be corrected to reflect that burglary with assault is a first degree felony punishable by life. § 810.02(2)(a), Fla.Stat. (1995).
We also reverse the order imposing restitution. Rhoden v. State, 622 So. 2d 122 (Fla. 1st DCA 1993)(reversing restitution order entered without oral pronouncement of restitution or opportunity for defendant to be heard on amount assessed); Palag v. State, 622 So. 2d 1151, 1152 (Fla. 1st DCA 1993) (“The state concedes the trial court erred in imposing a restitution amount in the written judgment, when the amount was not mentioned at the revocation proceeding. Moreover, the record before this court is silent with regard to the manner in which the restitution amount was determined.”). On remand the court may impose restitution in accordance with section 775.089, Florida Statutes.
We affirm without further discussion all other issues raised in the instant case.
MINER, ALLEN and WEBSTER, JJ., concur.
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McALLISTER v. State, 718 So. 2d 917 (Fla. 5th DCA 1998)…rt vacated the aggravated battery conviction because the same facts which established the aggravated battery charge (i.e., the same blow) also formed the basis for the battery element of the burglary charge. Appellant also relies on Bowers v. State, 679 So. 2d 340 (Fla. 1st DCA 1996), where Bowers was convicted of home invasion robbery and burglary with an assault for the same act of home invasion. The court there held that the burglary charge was subsumed by the offense of home invasion robbery. In § 775.02…
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Mendez v. State, 798 So. 2d 749 (Fla. 5th DCA 2001)…lister v. State, 718 So. 2d 917, 918 (Fla. 5th DCA 1998) (“Home invasion robbery is in essence an aggravated form of burglary, because it requires a burglary and robbery.”); Weiss v. State, 720 So. 2d 1113, 1113 (Fla. 3rd DCA 1998); Bowers v. State, 679 So. 2d 340, 341 (Fla. 1st DCA 1996). Convictions for both offenses, arising from the same incident, would violate Mendez’s double jeopardy protection and the proscriptions of section 775.021(4)(b), Florida Statutes (1997). Since the subsumed offense (burglary…
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Datoral Smith v. State, 741 So. 2d 579 (Fla. 3d DCA 1999)…PER CURIAM. The defendant contends, and the State properly concedes, that the conviction for count one, home invasion robbery should be vacated as it is subsumed by the greater offense of burglary with an assault. Bowers v. State, 679 So. 2d 340, 341 (Fla. 1st DCA 1996). The State also concedes that one of the two counts of burglary with an assault should be vacated. The defendant was improperly charged and convicted of two counts of burglary with an assault on the basis of attacks on two s…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Emmett Black v. State, 677 So. 2d 22 (Fla. 4th DCA 1996)
- Rhoden v. State, 622 So. 2d 122 (Fla. 1st DCA 1993)
- Palag v. State, 622 So. 2d 1151 (Fla. 1st DCA 1993)
- Elmy v. State, 667 So. 2d 392 (Fla. 1st DCA 1995)