MICHAEL LEE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2015-01-20
No. 1D13-4394
WOLF, THOMAS, and WETHERELL, JJ., concur.
154 So. 3d 523 Florida District Court of Appeal, First District (2015) Negative Treatment
Cited by 3 cases

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Synopsis

Michael Smith was convicted of armed burglary with assault, attempted armed robbery, and aggravated assault arising from a trailer break-in. The appellate court reversed his aggravated assault convictions on double jeopardy grounds because those offenses were subsumed within the armed burglary conviction, but affirmed his other convictions.


Holding

The court held that the aggravated assault convictions violate double jeopardy because all elements of aggravated assault are contained within the armed burglary with assault charge. Accordingly, counts III and IV were reversed and remanded for vacation.


Headnotes

[1] Convictions for aggravated assault violate the prohibition against double jeopardy when those offenses are subsumed within a conviction for armed burglary with an assault…

[2] A conviction for armed burglary with an assault encompasses all elements of aggravated assault when the assault occurs during the commission of the burglary.

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Key Quotes

“[B]ecause all of the elements of the crime of aggravated 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.”

Establishes the controlling legal standard for subsumption and double jeopardy violations in this circuit

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Facts & Procedural History

Smith broke into a trailer brandishing a BB gun and demanded money from three victims: Robert Dodd, Rebecca Dodd, and Courtney Barnes. The victims had…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant broke into a trailer brandishing a BB gun and demanded money from the three individuals inside: Robert Dodd, Rebecca Dodd, and Courtney Barnes. The victims did not have any money and Appellant left without further incident. Appellant was charged with “armed burglary with assault or battery” (count I),1 *524three counts of attempted armed robbery (counts II-IV), and possession of a firearm by a convicted felon (count V). The jury found Appellant guilty on count I, with specific findings that Appellant was armed with explosives or a dangerous weapon (but not a firearm) and that he committed an assault during the burglary; guilty on count II (Mr. Dodd); and guilty of the lesser included offense of aggravated assault on counts III and IV (Ms. Dodd and Ms. Barnes).2 Appellant was sentenced to concurrent prison terms of 20 years on count I, 15 years on count II, and 5 years on counts III and IV.

Appellant argues in this direct appeal that his aggravated assault convictions (counts III and IV) violate the prohibition against double jeopardy because those offenses are subsumed within his conviction for armed burglary with an assault (count I). We agree. See Green v. State, 120 So.3d 1276, 1278 (Fla. 1st DCA 2013) (“[B]ecause all of the elements of the crime of aggravated 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.”); White v. State, 753 So.2d 668, 669 (Fla. 1st DCA 2000) (same). Accordingly, we reverse and remand for the trial court to vacate Appellant’s convictions for counts III and IV. See Farrier v. State, 145 So.3d 199, 200 (Fla. 5th DCA 2014) (in case involving two victims, vacating both convictions for aggravated assault with a firearm on double jeopardy grounds because those offenses were subsumed within the defendant’s conviction of burglary with an assault or battery with a firearm); but see Estremera v. State, 107 So.3d 511, 512 (Fla. 5th DCA 2013) (in case involving three victims, vacating only one of the aggravated assault convictions as being subsumed within the defendant’s conviction of burglary with an assault while armed). We affirm Appellant’s convictions and sentences in all other respects.3

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

WOLF, THOMAS, and WETHERELL, JJ., concur.


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