Roundtree v. State, 87-2437

• Decision Date: 28 December 1988
• Docket Number: No. 87-2437,87-2437
• Citation: 536 So.2d 1141,14 Fla. L. Weekly 103
• Parties: 14 Fla. L. Weekly 103 Benny ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1141

536 So.2d 1141

14 Fla. L. Weekly 103

Benny ROUNDTREE, Appellant, v. STATE of Florida, Appellee.

No. 87-2437.

District Court of Appeal of Florida,

Second District.

Dec. 28, 1988.

James Marion Moorman, Public Defender, Bartow, and Brad Permar, Asst. Public Defender, Clearwater, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Judge.

The appellant presents three issues in this appeal from his convictions and sentences for first degree burglary and aggravated battery. We find no merit in the appellant's first issue in which he contends that the trial judge erred in scoring victim injury points as "severe" instead of "moderate." While we likewise find no merit in the appellant's second issue concerning a double jeopardy violation, we discuss it further below. The appellant's third contention, that the trial judge departed from the sentencing guidelines on the sole ground of the appellant's status as an habitual offender, is meritorious and warrants reversal of his sentence.

We turn initially to the appellant's double jeopardy issue. In an amended information the state charged the appellant with one count of first degree burglary in violation of section 810.02, Florida Statutes (1983), by unlawfully entering the dwelling of the victim and, while in the course thereof, making an assault upon her by threatening to strike her. In a second count, the state further charged the appellant with commission of aggravated battery occurring during the same criminal episode by causing bodily harm to the victim with a deadly weapon in violation of section 784.045, Florida Statutes (1983). After a trial by jury the appellant was found guilty of both counts and sentenced for each. In this appeal, he claims that the convictions and sentences for these two particular crimes constitute a violation of his constitutional double jeopardy rights. To support this claim he cites to the Florida Supreme Court case of Carawan v. State, 515 So.2d 161 (Fla.1987). Carawan, however, does not support the appellant in this regard. Moreover, we note that subsequent to Carawan, the legislature amended section 775.021(4), Florida Statutes (1983), to clarify its intent in sentencing in cases of multiple convictions for separate crimes committed during the course of one criminal episode or transaction. Ch. 88-131, § 7, Laws of Fla. Consistent with constitutional double jeopardy safeguards, the legislature outlined three categories of offenses in which it would be impermissible to sentence separately:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same...