JOSE ESTACHE

v.

THE STATE OF FLORIDA

Third District Court of Appeal

State of Florida

Opinion filed July 13, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D18-2322 Lower Tribunal No. F06-37622E

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Jose Estache,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge. Jeffrey H. Fink, for appellant. Ashley Moody, Attorney General, and Christina L. Dominguez and Ivy R. Ginsberg, Assistant Attorneys General, for appellee. Before LOGUE, SCALES, and LINDSEY, JJ. LINDSEY, J. Appellant Jose Estache (Defendant below) appeals a final judgment of conviction and sentence. For the reasons set forth below, we reverse and remand for the trial court to vacate the convictions for attempted home invasion robbery (count 12) and unlawful possession of a firearm (count 15). We affirm all other issues on appeal.

I. BACKGROUND

On October 14, 2006, Ann Maynard was preparing to host a children’s birthday party for her cousin Carla Queely’s son and her friend Sophia Alexis’s son. According to Ms. Maynard’s testimony, two unknown men came to her front door. She testified that both men were black and described one as “a tall, light-skinned man” and the other as “shorter and darker.” The taller man, who was holding a pistol, ordered Ms. Maynard, Ms. Queely, and Ms. Queely’s son to get down on the ground. The taller man repeatedly asked if there was a safe in the house. Ms. Maynard answered that there was no safe. The taller man then put a silencer on his pistol and told the victims to stop crying and to be quiet because he would have no problem killing them. Once the victims were on the ground, the taller man handed the shorter man plastic zip ties to put on the victims’ hands. At this point, Ms. Maynard heard her sister and her sister’s two children at the front door. Ms. Maynard pushed the taller man aside as he was opening the door and yelled to her sister and the two children to run. The taller man shot Ms. Maynard in the face and in her hands. He also shot Ms. Maynard’s sister and the two children. All four survived. Moments later, after the two men fled, Ms. Queely and her son, who had remained in the house, were found dead. They had been shot by the shorter man. Ms. Maynard testified that she got a good look at the taller man. She identified him from a photographic lineup and stated she was “very certain” because “that’s the face I will never forget in my life.” While on the stand, Ms. Maynard identified Jose Estache as the taller man, the same man she had identified from the photographic lineup.

In October 2006, Estache, who was living in Broward County, was wearing a GPS ankle bracelet as a condition of pretrial release in an unrelated criminal case. His ankle bracelet automatically recorded GPS location data every minute and reported the GPS data points to a database every hour. On October 14, 2006, at the time the crimes were committed, the GPS data showed locations at or near Ms. Maynard’s home.¹ Based on Ms. Maynard’s photographic lineup identifications, an arrest warrant was issued for Estache. Police applied for and received a court

II. ANALYSIS

Estache raises numerous issues on appeal, many of which challenge the trial court’s discretion with respect to various evidentiary issues. We write solely to address Estache’s argument that the judgment violated double jeopardy. We affirm the remaining issues on appeal. Given the record before us and the evidence at trial, which included Ms. Maynard’s identification of Estache, the GPS data placing Estache at the crime scene during the time the crimes were committed, and Estache’s incriminating statements to Detective Hoadley, to the extent the trial court erred, any error would be harmless. See Wright v. State, 317 So. 3d 237, 241 (Fla. 3d DCA 2021), review denied, SC21-1076, 2021 WL 5275705 (Fla. Nov. 12, 2021) (“[T]o the extent evidence of the collateral crimes was not admissible, we agree with the State that any error would be harmless in light of [Defendant’s] confession because, based on the record before us, there is no reasonable possibility that the error contributed to the conviction.”). Estache raises three double jeopardy challenges. Double jeopardy claims present pure questions of law and are therefore reviewed de novo. McKinney v. State, 66 So. 3d 852, 853 (Fla. 2011). “[S]eparate convictions for different offenses arising from a single act are only permissible where each separate offense contains an element that the other lacks.” Olivard v. State, 831 So. 2d 823, 824 (Fla. 4th DCA 2002). When separate convictions violate double jeopardy, the remedy is to vacate the conviction for the lesser offense and affirm the conviction for the greater one. Id. Estache challenges the following three convictions as violations of double jeopardy. 1. Burglary with Assault (Count 11) and Attempted Home Invasion Robbery (Count 12) Estache argues his conviction for both burglary with assault and attempted home invasion robbery violates double jeopardy. We agree. “The crime of burglary of a dwelling with an assault or battery is subsumed by the offense of home invasion robbery.” Mendez v. State, 798 So. 2d 749, 750 (Fla. 5th DCA 2001); see also Braggs v. State, 789 So. 2d 1151, 1153 (Fla. 3d DCA 2001) (“As the state correctly concedes, the conviction for . . . home invasion robbery, ‘should be vacated as it is subsumed by the greater offense of burglary with an assault.’” (quoting Smith v. State, 741 So. 2d 579, 579 (Fla. 3d DCA 1999))). We therefore remand for the trial court to vacate the conviction for the lesser offense of attempted home invasion robbery. We affirm the conviction for burglary with assault. 2. Attempted Home Invasion Robbery (Count 12) and Attempted Armed Robbery (Count 13) Estache argues that his conviction for attempted armed robbery must be vacated because it is completely subsumed within the crime of attempted home invasion robbery. As set forth above, the lesser offense of attempted home invasion robbery should be vacated. Consequently, this argument is moot. 3. Unlawful Possession of a Firearm (Count 15)

Because Counts 7-13 were enhanced upon the jury’s finding that Estache used or carried a firearm, Estache argues that his conviction for unlawful possession of a firearm (Count 15) violates double jeopardy. See Mendoza v. State, 941 So. 2d 523, 525 (Fla. 3d DCA 2006) (“[W]hen a defendant is convicted of a felony in which the conviction is enhanced due to use of a firearm, the double jeopardy clause bars both a conviction and sentence for the crime of possession of a firearm during the commission of a felony.”). The State agrees. We therefore remand for the trial court to vacate the conviction for unlawful possession of a firearm.

III. CONCLUSION

We reverse and remand for the trial court to vacate the convictions for attempted home invasion robbery (count 12) and unlawful possession of a firearm (count 15). We affirm all other issues on appeal. Affirmed, in part, and reversed and remanded, in part.