Averheart v. State, GG-202
| Decision Date | 16 May 1978 |
| Docket Number | No. GG-202,GG-202 |
| Parties | Samuel AVERHEART, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
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...
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Pinder v. State
...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).2 The double jeopardy clause is made applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.......
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Cochenet v. State, 83-162
...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 app......
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Pea v. State, 97-3526.
...on the other counts to supply the allegation. Id. at 399. See also Leone v. State, 590 So.2d 29 (Fla. 5th DCA 1991); Averheart v. State, 358 So.2d 609 (Fla. 1st DCA 1978) (holding that a crime used as an enhancement may not be inferred from other counts in the information). Each count of an......
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Colwell v. State, 82-1255
...contained in the special concurring opinion in Cochenet v. State, 445 So.2d 398 (Fla. 5th DCA 1984). See Averheart v. State, 358 So.2d 609 (Fla. 1st DCA 1978). ...