Bowers v. State, 95-2523
| Decision Date | 04 September 1996 |
| Docket Number | No. 95-2523,95-2523 |
| Citation | 679 So.2d 340 |
| Parties | 21 Fla. L. Weekly D1995 William Eugene BOWERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.
Appellant raises seven issues in regard to his convictions and sentences in the instant case. Appellant was convicted as charged of two counts of home-invasion robbery (one count as to each victim), one count of burglary with assault, and two counts of kidnapping. We affirm in part and reverse in part.
Using a gun, appellant and an accomplice forced their way into the home of Ginder and Elmore and forced them and their young child to lie face down on the floor. Appellant threatened to pistol whip Ginder and to cut off his fingers if he did not cooperate. Ginder complied, and the two men took money and other items in the house. Before leaving, the robbers tied up both Ginder and Elmore.
We vacate appellant's convictions for home-invasion robbery. Initially, Appellant was convicted of two counts of home-invasion robbery that arose out of appellant's entry into a single dwelling occupied by its two owners. Section 812.135, Florida Statutes (1995), defines home-invasion robbery as "[a]ny robbery that occurs when the offender enters a dwelling with the intent to commit a robbery, and does commit a robbery of the occupants therein." As the state properly concedes, the statute clearly contemplates a single entry into a dwelling and the ensuing robbery of one or more occupants. Accordingly, only one count of home-invasion robbery properly could be charged. Second, the home-invasion robbery convictions are vacated because the crime of burglary with assault is subsumed by the offense of home-invasion robbery. See §§ 775.021, 810.02(1), 810.02(2)(a), 812.135, 812.13(1), Fla.Stat. (1995). See also Black v. State, 677 So.2d 22 (Fla. 4th DCA 1996); Elmy v. State, 667 So.2d 392 (Fla. 1st DCA 1995). In the instant case the subsumed crime, burglary with assault, is a greater offense. We therefore vacate the conviction for home-invasion robbery. In addition, on remand, the judgment must be corrected to reflect that burglary with assault is a first degree felony punishable by life. § 810.02(2)(a), Fla.Stat. (1995).
We also reverse the order imposing restitution. Rhoden v. State, 622 So.2d 122 (Fla. 1st DCA 1993)( restitution order entered without oral pronouncement of restitution or opportunity for defendant to be heard on amount assessed); Palag...
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Green v. State
...different. Therefore, the offenses are not identical and one offense is not subsumed by the other offense. Unlike Bowers v. State, [679 So.2d 340 (Fla. 1st DCA 1996) ], appellant was not charged with home invasion robbery. Home invasion robbery is in essence an aggravated form of burglary, ......
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Mendez v. State
...burglary, because it requires a burglary and robbery."); Weiss v. State, 720 So.2d 1113, 1113 (Fla. 3rd DCA 1998); Bowers v. State, 679 So.2d 340, 341 (Fla. 1st DCA 1996). Convictions for both offenses, arising from the same incident, would violate Mendez's double jeopardy protection and th......
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Tuttle v. State
...3d DCA 2001); Barboza v. State, 786 So.2d 675 (Fla. 3d DCA 2001); Smith v. State, 741 So.2d 579 (Fla. 3d DCA 1999); Bowers v. State, 679 So.2d 340 (Fla. 1st DCA 1996), and hence no longer apply, or simply cite to pre-Pizzo authority with no analysis of whether that authority remained good l......
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Schulterbrandt v. State
...only one home during this crime. Thus, [the defendant] may be punished only once. (Citation omitted.) See also Bowers v. State, 679 So.2d 340, 341 (Fla. 1st DCA 1996) ("[T]he [home-invasion robbery] statute clearly contemplates a single entry into a dwelling and the ensuing robbery of one o......