EDGARDO ESTREMERA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edgardo Estremera appealed his convictions for burglary with assault while armed with a firearm, robbery with a firearm, petit theft, and three counts of aggravated assault with a firearm. The court found that one aggravated assault conviction and the burglary conviction were duplicative and violated double jeopardy, requiring vacation of one aggravated assault conviction, but upheld the remaining two aggravated assault convictions as they involved separate victims.
One aggravated assault conviction must be vacated because all elements of aggravated assault with a firearm are contained within burglary with assault while armed with a firearm, violating double jeopardy. However, the two remaining aggravated assault convictions do not violate double jeopardy because they involved three separate victims, and the legislature intended separate punishments when threats place more than one person in well-founded fear.
[1] A conviction for burglary with an assault while armed with a firearm encompasses all the elements of aggravated assault with a firearm, thus dual convictions for both off…
[2] Multiple convictions under the aggravated assault statute arising from a single criminal episode do not violate double jeopardy when the defendant's threat places more th…
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Join FLexlaw to unlock all legal intelligence“[A]ll of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with assault while armed with a firearm.”
Establishes the legal principle that duplicative convictions violate double jeopardy when one crime contains all elements of another.
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Join FLexlaw to unlock all legal intelligenceEstremera was convicted of burglary of a structure with an assault while armed with a firearm, robbery with a firearm, petit theft, and three counts o…
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Appellant, Edgardo Estremera (“Es-tremera”), appeals his convictions and sentences for burglary of a structure with an assault while armed with a firearm, robbery with a firearm, petit theft, and three counts of aggravated assault with a fire*512arm. Estremera raises several issues on appeal, only one of which merits discussion.
Estremera challenges his convictions for aggravated assault with a firearm and burglary with an assault while armed with a firearm on the grounds that the convictions violate double jeopardy. “[A]ll of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with assault while armed with a firearm.” White v. State, 753 So.2d 668, 669 (Fla. 1st DCA 2000). Thus, the State has properly conceded error with regard to Estremera’s dual convictions for aggravated assault with a firearm and burglary with assault while armed with a firearm, and one of Estrem-era’s aggravated assault convictions must be vacated as a violation of the prohibition against double jeopardy. However, because there were three separate victims of aggravated assault in this case, the two remaining aggravated assault convictions do not violate double jeopardy. See Mauldin v. State, 9 So.3d 25, 28 (Fla. 4th DCA 2009) (concluding that it is clear from the assault statute that “[t]he legislature intended separate punishments when a defendant’s threat places more than one person in well-founded fear,” and, thus, multiple convictions under the assault statute arising from a single criminal episode do not violate the prohibition against double jeopardy). Accordingly, we reverse with instructions to vacate one of Estremera’s convictions for aggravated assault. Because Estremera’s sentencing scoresheet must be recalculated, we also remand for resentencing on the remaining convictions which are affirmed. Estrem-era is entitled to be present when he is resentenced. See Orta v. State, 919 So.2d 602 (Fla. 3d DCA 2006) (concluding that resentencing on a recalculated scoresheet is not a “ministerial act,” and, thus, the defendant had the right to be present).
AFFIRMED in part, REVERSED in part, and REMANDED with instructions
TORPY and EVANDER, JJ, concur.
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McGHEE v. State, 133 So. 3d 1137 (Fla. 5th DCA 2014)…assault with a firearm are contained within the crime of burglary with an assault while armed with a firearm, convictions for both the burglary and the aggravated assault violate the prohibition against double jeopardy.” (citing Estremera v. State, 107 So. 3d 511 (Fla. 5th DCA 2013); White v. State, 753 So. 2d 668, 669 (Fla. 1st DCA 2000))); see also Babrow v. State, 62 So. 3d 1205, 1206 (Fla. 4th DCA 2011). The conviction for battery must also be reversed because a conviction for both burglary with an assa…
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Green v. State, 120 So. 3d 1276 (Fla. 1st DCA 2013)…me of burglary with an assault while armed with a firearm, convictions for both the burglary and the aggravated assault violate the prohibition against double jeopardy. See White v. State, 753 So. 2d 668, 669 (Fla. 1st DCA 2000); Estremera v. State, 107 So. 3d 511 (Fla. 5th DCA 2013). The State properly concedes error regarding the dual convictions for burglary with an assault while armed with a firearm and aggravated assault upon K.J. (Counts III and V). However, with regard to the allegations involving Y.J…
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Tambriz-Ramirez v. State, 248 So. 3d 1087 (Fla. 2018)…DCA 2016), Hankins v. State , 164 So. 3d 738 (Fla. 5th DCA 2015), Smith v. State , 154 So. 3d 523 (Fla. 1st DCA 2015), McGhee v. State , 133 So. 3d 1137 (Fla. 5th DCA 2014), Green v. State , 120 So. 3d 1276 (Fla. 1st DCA 2013), Estremera v. State , 107 So. 3d 511 (Fla. 5th DCA 2013), White v. State , 753 So. 2d 668 (Fla. 1st DCA 2000), and Baldwin v. State , 790 So. 2d 434 (Fla. 1st DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons we explain, we approve the Fourth District'…1 / 3
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006)
- Mauldin v. State, 9 So. 3d 25 (Fla. 4th DCA 2009)
- Fentriss Royce White v. State, 753 So. 2d 668 (Fla. 1st DCA 2000)