WILLIE ROY BENSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant convicted of two counts describing essentially the same conduct (breaking and entering with intent to commit rape while armed, and assault with intent to commit rape) cannot be punished cumulatively for the same criminal episode; sentences vacated and remanded for re-sentencing on the higher charge only.
A defendant cannot be punished cumulatively for multiple convictions arising from essentially the same criminal conduct, even though the state may prosecute under different statutory characterizations.
[1] A defendant may not receive cumulative punishment for multiple convictions arising from essentially the same criminal conduct, even though prosecution under different sta…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the state is at liberty to prosecute an individual under several different characterizations of essentially the same criminal episode. It is not at liberty to punish him cumulatively, however, for what is essentially the same conduct variously described.”
Court explaining the distinction between permissible multiple prosecutions and impermissible cumulative punishment for the same conduct.
Benson was convicted of breaking and entering with intent to commit rape while armed (punishable by life imprisonment or any term of years) and assaul…
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MANN, Chief Judge.
Benson was convicted of two counts which differently describe essentially the same conduct. One of these charges was breaking and entering with intent to commit a felony, namely assault with intent to commit rape, while armed. This constitutes an offense under Fla.Stat. § 810.01 (1973) punishable by life imprisonment or any term of years. The second offense was assault with intent to commit a felony, to-wit rape, punishable pursuant to §§ 784.06 and 775.082, F.S.1973, by imprisonment not to exceed 15 years. The trial judge entered judgment on both counts and sentenced Benson to 35 years on the first count and 15 years on the sec ond, the sentences to run consecutively. As we said in Edmond v. State, Fla.App.2d 1973, 280 So. 2d 449, the Legislature properly provides punishment for a wide variety of offenses and the state is at liberty to prosecute an individual under several different characterizations of essentially the same criminal episode. It is not at liberty to punish him cumulatively, however, for what is essentially the same conduct variously described. In the present case the total punishment of SO years could have been imposed upon the graver offense, so we cannot say that the total of the improperly imposed sentences exceeds that provided by law. Consequently, the sentence imposed on each count is vacated and the cause is remanded for re-sentencing on the higher charge in keeping with our decision in Baggett v. State, Fla.App. 2d 1974, 287 So. 2d 336. See also Baggett v. State, Fla.App.2d 1974, 302 So. 2d 206.
HOBSON and McNULTY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jenkins v. Louie L. Wainwright, 322 So. 2d 477 (Fla. 1975)…liberty to prosecute an individual under several different characterizations of essentially the same criminal episode, it is not at liberty to punish him cumulatively for what is essentially the same conduct variously described. See Benson v. State, 301 So. 2d 503 (Fla.App.1974). Therefore, while I would affirm the adjudications of guilt, on the authority of Lietch, supra, I would remand the cause to the trial court to vacate the present sentences and to enter a single sentence as authorized by law. Accordin…
Authorities Cited
- Ellis Edmond v. State, 280 So. 2d 449 (Fla. 2d DCA 1973)
- Baggett v. State, 302 So. 2d 206 (Fla. 2d DCA 1974)
- Baggett v. State, 287 So. 2d 336 (Fla. 2d DCA 1974)