JAMES PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Perez appeals his convictions for armed home invasion robbery, armed burglary, and false impersonation of a law enforcement officer committed during a single criminal episode. The court affirms his convictions for home invasion robbery and false impersonation but reverses the armed burglary conviction as subsumed by the greater offense of home invasion robbery, which violates either double jeopardy or statutory prohibitions on multiple punishments.
The armed burglary conviction must be vacated because it is subsumed by the greater offense of armed home invasion robbery, in violation of either the Florida Constitution's double jeopardy clause or section 775.021(4), Florida Statutes. The convictions for home invasion robbery and false impersonation are affirmed.
[1] A conviction for armed burglary is subsumed by the greater offense of armed home invasion robbery when a jury finds the defendant possessed a firearm during the commissio…
[2] Convictions arising from a single criminal episode for home invasion robbery and burglary of a dwelling violate either double jeopardy or statutory provisions prohibiting…
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Join FLexlaw to unlock all legal intelligence“It has been held that convictions arising from a single episode for home invasion robbery and burglary violate either double jeopardy or section 775.021(4)(b)(3).”
Establishes the controlling legal principle that dual convictions for these offenses in a single episode are impermissible
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Join FLexlaw to unlock all legal intelligenceOn September 26, 2003, James Perez committed armed home invasion robbery, armed burglary, and false impersonation of a law enforcement officer during …
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ALTENBERND, Judge.
James Perez appeals his judgments and sentences for armed home invasion robbery, armed burglary, and false impersonation of a law enforcement officer during the commission of a felony. Mr. Perez committed all three offenses on September 26, 2003, during a single criminal episode. The trial court sentenced Mr. Perez to concurrent terms of life imprisonment for the home invasion robbery and the armed burglary and to another concurrent term of fifteen years’ imprisonment for the false impersonation offense. Although it may have little practical effect, we must reverse the judgment and sentence for armed burglary because it either violates double jeopardy under article I, section 9, of the Florida Constitution, or contravenes section 775.021(4)09, Florida Statutes (2003).
It has been held that convictions arising from a single episode for home invasion robbery and burglary violate either double jeopardy or section 775.021(4)(b)(3). See, e.g., Mendez v. State, 798 So. 2d 749 (Fla. 5th DCA 2001) (holding convictions for burglary of a dwelling with assault or battery and home invasion robbery violated double jeopardy and section 775.021(4)(b) because burglary of a dwelling was subsumed by the home invasion robbery offense); Barboza v. State, 786 So. 2d 675 (Fla. 3d DCA 2001) (holding that the state conceded that appellant’s convictions for both home invasion robbery and burglary with an assault were improper); Weiss v. State, 720 So. 2d 1113 (Fla. 3d DCA 1998) (explaining conviction for home invasion robbery and burglary with assault violated double jeopardy); Black v. State, 677 So. 2d 22 (Fla. 4th DCA 1996) (vacating burglary conviction where appellant was convicted of burglary and home invasion robbery because all of the elements of burglary are contained in home invasion robbery).
The State persuasively argues that the burglary was complete at the moment Mr. Perez entered the home and that the robbery was a separate offense occurring at least a few seconds later inside the home. Accordingly, the State maintains that convictions for the two offenses are permissible under section 775.021. Although such an analysis has been accepted for the crimes of armed carjacking and burglary of a conveyance, the language of the home invasion robbery statute does not appear to permit this distinction. See Green v. State, 828 So. 2d 462 (Fla. 5th DCA 2002).
In this case, the jury made a specific finding that Mr. Perez possessed a firearm in both offenses. Armed burglary is a first-degree felony punishable by life. § 810.02(2)(b), Fla. Stat. (2003). Home invasion robbery is reclassified as a life felony when a jury determines that the defendant possessed a firearm during the offense. §§ 775.087(l)(a), 812.135(2), Fla. Stat. (2003). Thus, Mr. Perez’s conviction for armed burglary must be vacated as it is subsumed by the greater offense of armed home invasion robbery.
Affirmed in part, reversed in part, and remanded.
WHATLEY and CASANUEVA, JJ., Concur.
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Davis v. State, 74 So. 3d 1096 (Fla. 1st DCA 2011)…ciples of double jeopardy. Compare § 810.02(1)(b), (2)(a), Fla. Stat. (2009), with § 812.135(1), Fla. Stat. (2009); see Bowers v. State, 679 So. 2d 340, 341 (Fla. 1st DCA 1996); Elmy v. State, 667 So. 2d 392, 392 (Fla. 1st DCA 1995); Perez v. State, 951 So. 2d 859, 859-60 (Fla. 2d DCA 2006); cf. Coleman v. State, 956 So. 2d 1254, 1257 (Fla. 2d DCA 2007) (holding that “multiple burglary convictions based upon a single forced entry violate double jeopardy principles”); McAllister v. State, 718 So. 2d 917, 918 (…
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Adel'b Schulterbrandt v. State, 984 So. 2d 542 (Fla. 2d DCA 2008)…ust be vacated. Schulterbrandt also argues that his convictions for both armed burglary of a dwelling and attempted armed home-invasion robbery violated double jeopardy because they arose from the same criminal episode. We agree. In Perez v. State, 951 So. 2d 859, 860 (Fla. 2d DCA 2006), we vacated a conviction for armed burglary on double jeopardy grounds, finding the offense “subsumed by the greater offense of armed home invasion robbery.” Convictions for home-invasion robbery and burglary based on a singl…
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Tuttle v. State, 137 So. 3d 393 (Fla. 2d DCA 2014)…the attempted home-invasion robbery conviction. Therefore, the conviction for armed burglary must be vacated. Id. at 544. In reaching this conclusion, this court relied on two of its earlier cases which reached the same conclusion: Perez v. State, 951 So. 2d 859 (Fla. 2d DCA 2006), and Coleman v. State, 956 So. 2d 1254 (Fla. 2d DCA 2007), as well as the Fifth Dis [*396] trict’s decision in McAllister, 718 So. 2d at 918, and the Fourth District’s decision in Black v. State, 677 So. 2d 22 (Fla. 4th DCA 1996).…
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
- Weiss v. State, 720 So. 2d 1113 (Fla. 3d DCA 1998)
- Emmett Black v. State, 677 So. 2d 22 (Fla. 4th DCA 1996)
- Mendez v. State, 798 So. 2d 749 (Fla. 5th DCA 2001)
- Barboza v. State, 786 So. 2d 675 (Fla. 3d DCA 2001)
- Green v. State, 828 So. 2d 462 (Fla. 5th DCA 2002)