ALEX RODRIGUEZ
v.
STATE OF FLORIDA
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Double jeopardy prohibits convictions for both home invasion robbery and burglary of a dwelling, requiring vacation of the burglary conviction as the lesser included offense.
[1] Double jeopardy prohibits convictions for both burglary of a dwelling and home invasion robbery, and when both convictions are entered, the burglary conviction as the les…
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Join FLexlaw to unlock all legal intelligence“double jeopardy precludes convictions for both burglary of a dwelling and home invasion robbery”
The court's statement of the applicable law after the State conceded error on the double jeopardy issue.
Rodriguez was convicted of home invasion robbery with a weapon (a first-degree felony) and burglary of a dwelling with assault or battery with a weapo…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ALEX RODRIGUEZ,
Appellant,
v. Case No. 5D19-2346
STATE OF FLORIDA,
Appellee. ________________________________/
Opinion filed August 14, 2020
Appeal from the Circuit Court for Orange County, Tom Young, Judge.
Robert Wesley, Public Defender, and Robert Thompson Adams IV, Assistant Public Defender, Orlando, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
COHEN, J.
Alex Rodriguez appeals his convictions for home invasion robbery with a weapon, a first-degree felony punishable up to thirty years, and burglary of a dwelling with an assault or battery with a weapon, a felony punishable up to life.1 Rodriguez raises two
2 issues on appeal: the denial of his motion to suppress and whether double jeopardy prohibits convictions for both offenses. We find no abuse of discretion in the trial court’s denial of Rodriguez’s motion to suppress; the trial court’s in-depth findings were supported by the evidence. See Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002) (“[A] trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.” (citation omitted)). Thus, we affirm as to this issue. However, as the State properly concedes, the trial court erred in its ruling on double jeopardy. Despite the assistant state attorney’s argument below, the State acknowledges on appeal that double jeopardy precludes convictions for both burglary of a dwelling and home invasion robbery. See Fernandez v. State, 199 So. 3d 500 (Fla. 2d DCA 2016); Fleming v. State, 75 So. 3d 397 (Fla. 5th DCA 2011); Mendez v. State, 798 So. 2d 749 (Fla. 5th DCA 2001). With the State’s proper concession of error, we now must determine which of the two convictions to vacate. In Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006), the Florida Supreme Court held that in the double jeopardy context, the lesser crime should be vacated, which is the offense that has elements wholly subsumed by the other offense. See § 775.021(4), Fla. Stat. (2013). Utilizing the framework outlined in Pizzo, the court in State v. Tuttle, 177 So. 3d 1246 (Fla. 2015), held that burglary while armed is the lesser offense of attempted home invasion robbery with a firearm causing death or great bodily harm.
EDWARDS and SASSO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Pagan v. State, 830 So. 2d 792 (Fla. 2002)
- Pizzo v. State, 945 So. 2d 1203 (Fla. 2006)
- Fernandez v. State, 199 So. 3d 500 (Fla. 2d DCA 2016)
- Mendez v. State, 798 So. 2d 749 (Fla. 5th DCA 2001)
- State v. Tuttle, 177 So. 3d 1246 (Fla. 2015)
- Issac Nicholas Ray Fleming v. State, 75 So. 3d 397 (Fla. 5th DCA 2011)