BENNIE HALL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a battery conviction occurring contemporaneously with and as an element of robbery constitutes double jeopardy, requiring reversal.
Hall was convicted of battery and two counts of robbery. The battery occurred contemporaneously with and as an element of the robbery.…
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PER CURIAM.
Bennie Hall appeals his convictions and sentences for battery and for two counts of robbery. We reverse in part and affirm in part.
Hall contests the battery conviction on the ground that battery is a lesser included offense of the crime of robbery. In this case, the battery occurred contemporaneously with the robbery and formed one of its elements. McCloud v. State, 335 So. 2d 257 (Fla.1976); Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922). Thus, the conviction and sentence for battery constitutes double jeopardy. See Carawan v. State, 515 So. 2d 161, 170 (Fla.1987). We therefore reverse Hall’s conviction for battery and remand for resentencing on the remaining convictions.1
Reversed and remanded.
. Hall urges that the trial court improperly departed from the guidelines sentence. We disagree. If even one of the five reasons given by the trial court for departure is valid, the sentence must be affirmed. § 921.001(5), Fla. Stat. (1987). The record indicates that Hall’s juvenile record included crimes against property: loitering and prowling and burglary. As an adult, Hall was previously convicted of robbery. His present conviction for robbery is the latest in a series of criminal activities which escalate from crimes against property to crimes against people. Escalating criminal activity is a valid reason for departure. Love v. State, 515 So. 2d 364 (Fla. 4th DCA 1987); see Keys v. State, 500 So. 2d 134 (Fla.1986); Weems v. State, 469 So. 2d 128 (Fla. 1985); § 921.001(8), Fla. Stat. (1987).
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Cave v. State, 578 So. 2d 766 (Fla. 1st DCA 1991)…tances, the aggravated battery conviction, which is a category two lesser-included offense of armed robbery, must be vacated. Case law from other districts supports this position. See Rowe v. State, 574 So. 2d 1107 (Fla. 2d DCA 1990); Hall v. State, 549 So. 2d 758 (Fla. 3d DCA 1989); Sheppard v. State, 549 So. 2d 796 (Fla. 5th DCA 1989). However, for the reasons stated below, we disagree. Cave acknowledges the amendments to section 775.021(4), Florida Statutes, found in Chapter 88-131, Section 7, Laws of Flo…1 / 2
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Foster v. State, 596 So. 2d 1099 (Fla. 5th DCA 1992)…nses, but not .both and not one greater and also a lesser offense that is an inherent part of the greater offense. . § 775.021(4)(b)3., Fla.Stat. (1988) and State v. Rodriguez, 500 So. 2d 120 (Fla.1986) (Shaw, J., concurring). . See Hall v. State, 549 So. 2d 758 (Fla. 3d DCA 1989) (convictions for both robbery and battery, where the battery occurred contemporaneously with the robbery were found to have constituted double jeopardy) and Sheppard v. State, 549 So. 2d 796 (Fla. 5th DCA 1989). . As should be ob…
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Rosario v. State, 558 So. 2d 536 (Fla. 3d DCA 1990)…PER CURIAM. Upon the State’s confession of error and the authority of Hall v. State, 549 So. 2d 758 (Fla. 3d DCA 1989), the defendant’s conviction on the battery count is reversed and the cause is remanded for resentenc-ing.…
Authorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Montsdoca v. State, 84 Fla. 82 (Fla. 1922)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- McCLOUD v. State, 335 So. 2d 257 (Fla. 1976)
- Love v. State, 515 So. 2d 364 (Fla. 4th DCA 1987)
- Morganti v. State, 515 So. 2d 364 (Fla. 4th DCA 1987)