JEREMIAH BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We affirm in part and reverse in part. Appellant was convicted following a jury trial of armed burglary of a structure, two counts of armed robbery, and attempted second degree murder in connection with the robbery of a convenience store. He argues on appeal that the trial judge should have granted his motion for judgment of acquittal on the burglary charge because the only evidence at trial concerning the convenience store at the time of his entry was that it was open to the general public, and that one entering the premises under such circumstances cannot be convicted of burglary. We agree. See section 810.02(1), Florida Statutes (1995), and Collett v. State, 676 So. 2d 1046 (Fla. 1st DCA 1996). However, the remaining issues raised by appellant concerning his conviction of other offenses are without merit, and we therefore affirm as to those offenses.
The judgment of conviction for armed burglary is REVERSED. As to all other offenses of which appellant was convicted, the judgments of conviction are AFFIRMED, and this cause is remanded for resentencing using a corrected scoresheet.
JOANOS and WOLF, JJ., and SMITH, LARRY G., Senior Judge, concur.
PER CURIAM.
Appellant’s motion for rehearing asserts that this court overlooked appellant’s contention that he was improperly convicted of two counts of armed robbery, where the undisputed evidence disclosed that property of the convenience store and property of the store’s employee was taken from the employee during one continuous episode.
We agree that because there was a single victim, this case falls within the holdings of this and other courts that only one robbery occurs, notwithstanding the fact that the property taken belonged to different owners. Morgan v. State, 407 So. 2d 962 (Fla. 4th DCA 1982); Nordelo v. State, 603 So. 2d 36 (Fla. 3d DCA 1992); Horne v. State, 623 So. 2d 777 (Fla. 1st DCA 1993); cf., Brown v. State, 430 So. 2d 446 (Fla.1983). Further, as this court made clear in Austin v. State, 699 So. 2d 314 (Fla. 1st DCA 1997), appellant did not waive his double jeopardy claim arising from the multiple robbery convictions and sentences by his failure to raise it before the trial court.
Accordingly, on remand the trial court is directed to vacate the judgment and sentence as to one robbery count. In all other respects, we adhere to our opinion and decision filed April 17, 1998.
JOANOS and WOLF, JJ., and SMITH, LARRY G., Senior Judge, concur.
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Cruller v. State, 808 So. 2d 201 (Fla. 2002)…arly, the takings can be separated. Yet, we also note that case law and logic dictates that these takings were, in reality and by their propinquity, a continuous transaction of an armed robbery of one victim. Id. at 38-39. See also Butler v. State, 711 So. 2d 1183, 1184 (Fla. 1st DCA 1998) (holding that the defendant was convicted improperly of two counts of armed robbery, whether property of the convenience store and property of the store’s employee was taken from the employee “during one continuous episode”…
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Demps v. State, 965 So. 2d 1242 (Fla. 4th DCA 2007)…ersonal money of the employee and some was that of the employer. Appellant maintains that only one count of robbery is proper when there is a taking of property from one victim, even if the property belonged to different owners. See Butler v. State, 711 So. 2d 1183 (Fla. 1st DCA 1998) (holding that defendant was improperly convicted of two counts of armed robbery when he took property of convenience store and of store employee, where taking was “during one continuous episode”); Anderson v. State, 639 So. 2d 19…
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Darris Taylor v. State, 751 So. 2d 659 (Fla. 5th DCA 1999)…2d 1231, 1232 (Fla. 5th DCA 1981), pet. for review denied, 412 So. 2d 470 (Fla.1982); McClendon v. State, 372 So. 2d 1161, 1162 (Fla. 1st DCA 1979); see generally Brown v. State, 430 So. 2d 446, 447 (Fla.1983). Id. at 408. See also Butler v. State, 711 So. 2d 1183 (Fla. 1st DCA 1998) (vacating one of two convictions for armed robbery, where undisputed evidence disclosed that property of the convenience store and property of the store’s employee was taken from the employee during one continuous episode), appro…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 430 So. 2d 446 (Fla. 1983)
- Nordelo v. State, 603 So. 2d 36 (Fla. 3d DCA 1992)
- Austin v. State, 699 So. 2d 314 (Fla. 1st DCA 1997)
- Hershell Curtis Collett v. State, 676 So. 2d 1046 (Fla. 1st DCA 1996)
- Morgan v. State, 407 So. 2d 962 (Fla. 4th DCA 1981)
- Horne v. State, 623 So. 2d 777 (Fla. 1st DCA 1993)