SAMUEL AVERHEART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Samuel Averheart appeals his conviction for burglary of a dwelling and a life sentence imposed for that charge. The appellate court affirms the conviction but vacates the sentence, holding that the life sentence was excessive because the burglary charge under the applicable statute permitted a maximum of fifteen years imprisonment.
The conviction for burglary is affirmed, but the life sentence is set aside and the case is remanded for resentencing. Under Section 810.02(3), which applies when there is no assault or armed aggravation and the structure is a dwelling, the maximum sentence permissible is fifteen years imprisonment, not life imprisonment.
[1] A charge of burglary of a dwelling under Section 810.02(3), Florida Statutes, does not permit an inference of aggravating circumstances from other counts in the informati…
[2] Burglary of a dwelling, without allegations of assault or being armed with a dangerous weapon, is a second-degree felony under Section 810.02(3), Florida Statutes.
Previewing 2 of 4 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“Count II of the information herein charged appellant with burglary of a dwelling under Section 810.02(3), a second degree felony. It contained no allegations of the aggravating circumstances set forth in Sections 810.02(2)(a) or 810.02(2)(b).”
Establishes the statutory basis for the charge and absence of aggravating factors that would allow enhanced sentencing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Samuel Averheart was charged with burglary of a dwelling located at 20 North Reus Street (Count II) and sexual battery with use of a deadly …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Burglary Of A Dwelling cases and more on FLexlaw
PER CURIAM.
Appellant appeals a jury conviction of burglary of a dwelling. He urges that the sentence imposed thereon of life imprisonment is excessive.
Count II of the information alleged in pertinent part that:
“Samuel Averheart, ... did unlawfully enter remain (sic) in a certain dwelling, located at 20 North Reus Street . the property of Pearl Bartlett as owner or custodian thereof, with the intent to commit an offense therein, to wit: Sexual Battery, contrary to Section 810.02(3), Florida Statutes.”
Count I of the information alleged that appellant on the same date committed sexual battery upon Pearl Bartlett and that in the course thereof, he used or threatened to use a deadly weapon or he used actual physical force likely to cause serious personal injury, contrary to Section 794.011(3), Florida Statutes (1975). Appellant does not challenge the judgment and sentence imposed on this count.
Section 810.02, Florida Statutes (1975), provides in part:
“(1) ‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, .
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in § 775.082, § 775.-083, or § 775.084, if, in the course of committing the offense, the offender:
(a) Makes an assault upon any person.
(b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.
(3) If the offender does not make an assault or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the offense and the structure entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in § 775.-082, § 775.083, or § 775.084. Otherwise, burglary is a felony of the third degree punishable as provided in § 775.082, § 775.083, or § 775.084.”
Count II of the information herein charged appellant with burglary of a dwelling under Section 810.02(3), a second degree felony. It contained no allegations of the aggravating circumstances set forth in Sections 810.02(2)(a) or 810.02(2)(b). The allegation that an assault occurred in the course of the commission of the burglary may not be inferred from other counts of the information. Under Section 810.02(3) which is applicable herein, appellant could be sentenced to no more than fifteen years imprisonment. Accordingly, the judgment of conviction is affirmed. The sentence imposed for Count II, burglary of a dwelling is set aside and the cause is remanded to the trial court for sentencing as provided by Section 810.02(3).
MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA 1984)…intent to commit aggravated assault; it did not allege that the assault actually occurred. Although the fact of the assault is clearly alleged in another count, that count cannot be used to supply an added element for count one. Averheart v. State, 358 So. 2d 609 (Fla.lst DCA 1978). The conviction should therefore have been for a second-degree felony rather than a first-degree felony. Although the appellant failed to object to this error at the time of entry of judgment, the error is fundamental and may be r…
-
Pinder v. State, 366 So. 2d 38 (Fla. 2d DCA 1978)…the course of the burglary, the crime charged was only a second-degree felony. § 810.02(3), Fla.Stat. (1975). The maximum period of imprisonment for a second-degree felony is fifteen years. § 775.-082(3)(c), Fla.Stat. (1975); see Averheart v. State, 358 So. 2d 609 (Fla. 1st DCA 1978). . The double jeopardy clause is made applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Florida Constitution also contains a double jeopardy cl…
-
COX v. State, 530 So. 2d 464 (Fla. 5th DCA 1988)…intent to commit aggravated assault; it did not allege that the assault actually occurred. Although the fact of the assault is clearly alleged in another count, that count cannot be used to supply an added element for count one. Averheart v. State, 358 So. 2d 609 (Fla. 1st DCA 1978). The conviction should therefore have been for a second-degree felony rather than a first-degree felony. Although the appellant failed to object to this error at the time of entry of judgment, the error is fundamental and may be…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligence