McAllister v. State, 97-3450
| Decision Date | 25 September 1998 |
| Docket Number | No. 97-3450,97-3450 |
| Citation | 718 So.2d 917 |
| Parties | 23 Fla. L. Weekly D2210 Mack Arthur McALLISTER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Jennifer Meek, Assistant Attorney General, Daytona Beach, for Appellee.
Appellant was convicted of burglary of a conveyance with an assault or battery, and robbery. He contends that the conviction for robbery violates double jeopardy principles. We disagree and affirm.
The evidence at trial showed that appellant forcibly entered a vehicle while the driver was stopped to make a turn, punched the driver and demanded money. Appellant then removed cash and lottery tickets from the driver's pocket and, not being satisfied, demanded more money and threatened to shoot the driver if he did not comply. The driver testified that he was in fear for his life, and told appellant that he had no more money, after which appellant exited the car. Appellant was apprehended a short time later.
On appeal, appellant argues that the robbery conviction should be vacated because robbery is subsumed by the offense of burglary with assault or battery, relying on Crawford v. State, 662 So.2d 1016 (Fla. 5th DCA 1995), where Crawford was convicted of aggravated battery and burglary with a battery, and where the same battery supported both charges. This court vacated the aggravated battery conviction because the same facts which established the aggravated battery charge (i.e., the same blow) also formed the basis for the battery element of the burglary charge. Appellant also relies on Bowers v. State, 679 So.2d 340 (Fla. 1st DCA 1996), where Bowers was convicted of home invasion robbery and burglary with an assault for the same act of home invasion. The court there held that the burglary charge was subsumed by the offense of home invasion robbery.
In § 775.021(4)(b), Fla. Stat. (1997), 1 the legislature expressed its intent that there be a separate conviction and sentence for each criminal offense, unless one of the offenses is a degree of the other, a necessarily lesser included offense and subsumed in the other, or both offenses are identical. Under the traditional Blockburger 2 analysis, burglary with a battery or assault and robbery are separate offenses because each offense contains one or more essential elements that the other does not. Burglary requires the entering or remaining in a conveyance with the intent to commit an offense therein. See § 810.02(1), Fla. Stat. (1997). None of these elements are required for the robbery offense. On the other hand, robbery includes a taking, which is not required under burglary. See § 812.13(1), Fla. Stat. (1997). Although there is a force or assault element in each crime charged in this case, the other elements of each offense are distinctively different. Therefore, the offenses are not identical and one offense is not subsumed by the other offense.
Unlike Bowers v. State, supra, appellant was not charged with home invasion robbery. Home invasion robbery is in essence an aggravated form of burglary, because it requires a burglary and a robbery. Whereas the appellate court used the term "subsumed," it appears that home invasion robbery is an enhanced degree of burglary in the same way that burglary with an assault or battery is an enhanced degree of burglary. Home invasion robbery is a peculiar statutory creation, in that the offense of robbery is a part of it and is thus subsumed by it, and the offense of burglary is a lesser degree of the same substantive crime. On the other hand, the offense of robbery is not subsumed by the offense of burglary or vice versa, because neither of...
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McCloud v. State
...invasion robbery is in essence an aggravated form of burglary, because it requires a burglary and robbery." McAllister v. State, 718 So.2d 917, 918 (Fla. 5th DCA 1998). In contrast, burglary and robbery both require proof of an element unique to each offense. The statute governing burglary—......
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...83, 84 (Fla.1996); State v. Johnson, 676 So.2d 408, 409-10 (Fla.1996); Jones v. State, 608 So.2d 797 (Fla.1992); McAllister v. State, 718 So.2d 917 (Fla. 5th DCA 1998); Billups v. State, 690 So.2d 1381 (Fla. 1st DCA 1997); Hamrick v. State, 648 So.2d 274 (Fla. 4th DCA 1995) (discussing legi......
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Turbi v. Sec'y, Case No. 18-cv-40-T-33CPT
...id. Therefore, the offenses are not different degrees of the same crime, and one is not subsumed by the other. See McAllister v. State, 718 So.2d 917, 918 (Fla. 5th DCA 1998). Because Turbi does not show that his convictions for burglary and robbery violate double jeopardy, he cannot establ......