DANNY O. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Danny O. Davis appeals his convictions for sexual battery, burglary with assault/battery, and home-invasion robbery. The court reverses his home-invasion robbery conviction as a violation of double jeopardy, finding it subsumed by the burglary conviction arising from the same criminal episode, while affirming his remaining convictions.
The court held that burglary of a dwelling with an assault or battery is subsumed by home-invasion robbery, and therefore convictions for both offenses arising from a single criminal episode violate double jeopardy principles. The home-invasion robbery conviction must be vacated as the lesser included offense.
[1] Dual convictions and sentences for burglary with an assault or battery and home-invasion robbery arising from the same criminal episode violate the prohibition against do…
[2] A defendant may not be convicted of and sentenced for two offenses that occur in the same criminal episode unless each offense contains an element the other does not.
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Join FLexlaw to unlock all legal intelligence“a defendant may not be convicted of and sentenced for two offenses that occur in the same criminal episode unless each offense contains an element the other does not”
Establishes the legal standard for determining when dual convictions violate double jeopardy
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Join FLexlaw to unlock all legal intelligenceDavis committed sexual battery, burglary of a dwelling with assault or battery, and home-invasion robbery in a single criminal episode stemming from o…
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Danny O. Davis, Appellant, seeks review of his convictions and sentences for two counts of sexual battery and one count each of burglary of a dwelling with an assault or battery and home-invasion robbery. His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Following consideration of Appellant’s pro se brief and our independent review of the record, we directed Appellant’s counsel to provide supplemental briefing on whether Appellant’s dual convictions and sentences for burglary with an assault or battery and home-invasion robbery constitute double jeopardy. Appellant’s counsel now argues for reversal on this basis, and the State properly concedes error on this point. Accordingly, we reverse in part, affirm in part, and remand for vacation of the conviction and sentence for home-invasion robbery.
Both of the offenses at issue were committed in the same criminal episode and stemmed from a single uninvited entry into the victim’s home. Based on the constitutional prohibition against double jeopardy and section 775.021(4), Florida Statutes (2009), a defendant may not be convicted of and sentenced for two offenses that occur in the same criminal episode unless each offense contains an element the other does not. Gaber v. State, 684 So.2d 189, 191 (Fla.1996). This analysis focuses on the elements of the crime “without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4); Gaber, 684 So.2d at 190. Burglary of a dwelling with an assault or battery is subsumed by home-invasion robbery, such that convictions of both offenses arising from a single criminal episode violate the principles 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 (Fla. 5th DCA 1998) (recognizing home-invasion robbery as a form of burglary).
Because burglary with an assault or battery is the greater offense, this conviction should stand, and the conviction and sentence for home-invasion robbery should be vacated. Bowers, 679 So.2d at 341. Accordingly, we reverse Appellant’s conviction for home-invasion robbery and remand with directions that the trial court vacate the conviction and sentence for that *1098charge. Appellant’s remaining convictions and sentences are affirmed.
AFFIRMED in part; REVERSED in part; and REMANDED with directions.
DAVIS, LEWIS, and WETHERELL, JJ., concur.
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State v. Tuttle, 177 So. 3d 1246 (Fla. 2015)…ppeal in Tuttle v. State, 137 So. 3d 393 (Fla. 2d DCA 2014), on the ground that it expressly and directly conflicts with the decisions of the First District Court of Appeal in Johnson v. State, 133 So. 3d 602 (Fla. 1st DCA 2014), and Davis v. State, 74 So. 3d 1096 (Fla. 1st DCA 2011), the decision of the Fourth District Court of Appeal in Olivera v. State, 92 So. 3d 924 (Fla. 4th DCA 2012), and the decision of the Fifth District Court of Appeal in Washington v. State, 120 So. 3d 650 (Fla. 5th DCA 2013), on a…
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Tuttle v. State, 137 So. 3d 393 (Fla. 2d DCA 2014)…apply, or simply cite to pre-Pizzo authority with no analysis of whether that authority remained good law after Pizzo, see Washington v. State, 120 So. 3d 650 (Fla. 5th DCA 2013); Olivera v. State, 92 So. 3d 924 (Fla. 4th DCA 2012); Davis v. State, 74 So. 3d 1096 (Fla. 1st DCA 2011). In light of the fact that the pr e-Pizzo cases focused on a comparison of the punishments rather than the statutory elements to reach their conclusions — an approach explicitly rejected by Pizzo — these pr e-Pizzo cases are no l…
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Olivera v. State, 92 So. 3d 924 (Fla. 4th DCA 2012)…Stat. (2008). Our courts have held that convictions for both home invasion robbery and burglary of a dwelling with a battery, arising out of the same episode, violate double jeopardy because one offense is subsumed by the other. See Davis v. State, 74 So. 3d 1096, 1097 (Fla. 1st DCA 2011); Coleman v. State, 956 So. 2d 1254, 1256-57 (Fla. 2d DCA 2007); Mendez v. State, 798 So. 2d 749, 750 (Fla. 5th DCA 2001). Furthermore, the Second District has also held that convictions for attempted home invasion robbery a…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Gaber v. State, 684 So. 2d 189 (Fla. 1996)
- McALLISTER v. State, 718 So. 2d 917 (Fla. 5th DCA 1998)
- Bowers v. State, 679 So. 2d 340 (Fla. 1st DCA 1996)
- Perez v. State, 951 So. 2d 859 (Fla. 2d DCA 2006)
- Elmy v. State, 667 So. 2d 392 (Fla. 1st DCA 1995)
- Miller v. State, 956 So. 2d 1254 (Fla. 5th DCA 2007)