                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

MICHAEL LEE SMITH,                  NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D13-4394

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed January 20, 2015.

An appeal from the Circuit Court for Duval County.
James H. Daniel, Judge.

Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant broke into a trailer brandishing a BB gun and demanded money

from the three individuals inside: Robert Dodd, Rebecca Dodd, and Courtney

Barnes. The victims did not have any money and Appellant left without further
incident. Appellant was charged with “armed burglary with assault or battery”

(count I),1 three counts of attempted armed robbery (counts II-IV), and possession

of a firearm by a convicted felon (count V). The jury found Appellant guilty on

count I, with specific findings that Appellant was armed with explosives or a

dangerous weapon (but not a firearm) and that he committed an assault during the

burglary; guilty on count II (Mr. Dodd); and guilty of the lesser included offense of

aggravated assault on counts III and IV (Ms. Dodd and Ms. Barnes).2 Appellant

was sentenced to concurrent prison terms of 20 years on count I, 15 years on count

II, and 5 years on counts III and IV.

      Appellant argues in this direct appeal that his aggravated assault convictions

(counts III and IV) violate the prohibition against double jeopardy because those

offenses are subsumed within his conviction for armed burglary with an assault

(count I). We agree. See Green v. State, 120 So. 3d 1276, 1278 (Fla. 1st DCA

2013) (“[B]ecause all of the elements of the crime of aggravated assault with a

firearm are contained within the crime of burglary with an assault while armed

with a firearm, convictions for both the burglary and the aggravated assault violate


1
   This charge is an amalgamation of sections 810.02(2)(a) and (2)(b), Florida
Statutes (2011), which provide that burglary is a first-degree felony if, in the
course of committing the burglary, the defendant “[m]akes an assault or battery
upon any person” or “[i]s or becomes armed . . . with explosives or a dangerous
weapon.”
2
  Count V was severed for purposes of trial and was subsequently dismissed based
upon the jury’s finding that Appellant did not possess a firearm.
                                          2
the prohibition against double jeopardy.”); White v. State, 753 So. 2d 668, 669

(Fla. 1st DCA 2000) (same). Accordingly, we reverse and remand for the trial

court to vacate Appellant’s convictions for counts III and IV. See Farrier v. State,

145 So. 3d 199, 200 (Fla. 5th DCA 2014) (in case involving two victims, vacating

both convictions for aggravated assault with a firearm on double jeopardy grounds

because those offenses were subsumed within the defendant’s conviction of

burglary with an assault or battery with a firearm); but see Estremera v. State, 107

So. 3d 511, 512 (Fla. 5th DCA 2013) (in case involving three victims, vacating

only one of the aggravated assault convictions as being subsumed within the

defendant’s conviction of burglary with an assault while armed).        We affirm

Appellant’s convictions and sentences in all other respects. 3

        AFFIRMED in part; REVERSED in part; REMANDED with instructions.

WOLF, THOMAS, and WETHERELL, JJ., CONCUR.




3
    We find no merit in the other issue raised by Appellant.
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