BRANDON E. WASHINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brandon Washington appeals his convictions for armed burglary of a dwelling and attempted armed home-invasion robbery arising from the same incident. The Florida Fifth District Court of Appeal reverses the attempted armed home-invasion robbery conviction on double jeopardy grounds, finding that both offenses were subsumed within a single criminal episode.
The court reverses the conviction and sentence for attempted armed home-invasion robbery on double jeopardy grounds. The attempted armed home-invasion robbery conviction is reversed because it arises from the same incident as the armed burglary conviction and is subsumed by that offense. The armed burglary conviction and sentence are affirmed.
[1] A conviction and sentence for attempted armed home-invasion robbery may violate double jeopardy when arising from the same incident as an armed burglary of a dwelling con…
[2] A double jeopardy violation constitutes fundamental error that can be raised for the first time on direct appeal.
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Join FLexlaw to unlock all legal intelligence“both convictions arose out of the same incident”
Statement of the defendant's double jeopardy argument that triggered reversal
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Join FLexlaw to unlock all legal intelligenceWashington was charged with armed burglary of a dwelling and attempted armed home-invasion robbery stemming from the same incident. A jury found him g…
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Brandon Washington (defendant) appeals his judgment and sentences, entered by the trial court on the charges of armed burglary of a dwelling and attempted armed home-invasion robbery. We reverse the defendant’s conviction and sentence for attempted armed home-invasion robbery on double jeopardy grounds.
The State charged the defendant with, among other offenses, armed burglary of a dwelling1 and attempted armed home-invasion robbery2. The matter proceeded to trial before a jury. The jury returned a verdict of guilty on all charges. The trial court entered a judgment in accordance with the jury’s verdict, and sentenced the defendant to a life sentence on the armed burglary of a dwelling conviction and a concurrent sentence of fifteen years’ imprisonment on the attempted armed home-invasion robbery conviction.
The defendant argues that the trial court violated the prohibition against double jeopardy by entering a conviction and sentence on both the armed burglary of a dwelling conviction and the attempted armed home-invasion robbery conviction because both convictions arose out of the same incident.3 Schulterbmndt v. State, 984 So.2d 542 (Fla. 2d DCA 2008), and Olivera v. State, 92 So.3d 924 (Fla. 4th DCA), review denied, Olivera v. State, 104 So.3d 1086 (Fla.2012), support the defendant’s double jeopardy claim, and the State commendably concedes error. See also Jules v. State, 113 So.3d 949 (Fla. 5th DCA 2013) (holding that the defendant’s home-invasion robbery conviction violated double jeopardy because it arose from the same incident as the defendant’s burglary with an assault or battery conviction); Mendez v. State, 798 So.2d 749 (Fla. 5th DCA 2001) (explaining that burglary of a dwelling with an assault or battery is subsumed by the offense of home-invasion robbery).
Accordingly, the defendant’s conviction and sentence for attempted armed home-invasion robbery are reversed. We affirm in all other respects.
AFFIRMED in part; REVERSED in part; and REMANDED.
TORPY, C.J. and ORFINGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Tuttle, 177 So. 3d 1246 (Fla. 2015)…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 question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. BACKGROUND Double jeopardy prohibits conviction for two crimes where all of the elements of one crime are subsumed within the elements of the secon…
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Tuttle v. State, 137 So. 3d 393 (Fla. 2d DCA 2014)…1 So. 2d 579 (Fla. 3d DCA 1999); Bowers v. State, 679 So. 2d 340 (Fla. 1st DCA 1996), and hence no longer 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 element…
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Washington v. State (Fla. 5th DCA 2021)
Authorities Cited
- Bailey v. State, 21 So. 3d 147 (Fla. 5th DCA 2009)
- Mendez v. State, 798 So. 2d 749 (Fla. 5th DCA 2001)
- Adel'b Schulterbrandt v. State, 984 So. 2d 542 (Fla. 2d DCA 2008)
- Bell v. State, 114 So. 3d 229 (Fla. 5th DCA 2013)
- Olivera v. State, 92 So. 3d 924 (Fla. 4th DCA 2012)
- Decius Gene Jules v. State, 113 So. 3d 949 (Fla. 5th DCA 2013)