       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           TIMOTHY SHADE,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-133

                           [January 23, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Timothy L. Bailey, Judge; L.T. Case No. 15-12764
CF10A.

  Carey Haughwout, Public Defender, and Marcy Karr Allen, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   Appellant, Timothy Shade, appeals his convictions and sentences for
two counts of burglary involving a single entry of a dwelling. Appellant
raises five issues on appeal. We affirm four of the issues without
discussion. However, we agree with Appellant’s argument that the trial
court violated double jeopardy by convicting and sentencing him for two
counts of burglary where there was only one entry. We reverse and
remand for the trial court to (1) vacate the conviction and sentence on one
count and (2) vacate the sentence on the other count and resentence
Appellant on that count.

                               Background

   Appellant was charged as follows: Count 1, armed burglary of a
dwelling; Count 2, burglary of a dwelling with a battery; and Count 3,
robbery with a deadly weapon. The matter proceeded to a jury trial.
   The State’s theory of the case was that Appellant and another intruder,
whom the victim had seen before, burglarized her home. After the victim
discovered the burglars in her home during her lunch break from work,
Appellant pinned her against a wall, hit her with an object shaped like a
knife in a leather case, and fled. When police arrived, the victim gave a
statement and provided a description of the intruders. Appellant was later
found, and the victim positively identified him during a show-up
identification.

   At the close of the State’s case, Appellant argued that the two burglary
charges should not go to the jury because allowing both would pose an
issue of double jeopardy, and he requested that the trial court dismiss the
second count. The trial court denied the request.

   The jury returned its verdict finding Appellant guilty of burglary of a
dwelling, as a lesser-included offense of armed burglary of a dwelling
charged in Count 1, and guilty as charged of burglary of a dwelling with a
battery as charged in Count 2. The jury found Appellant not guilty of
robbery with a deadly weapon as charged in Count 3. Appellant was
adjudicated guilty accordingly. His criminal punishment scoresheet listed
Count 2 as the primary offense and burglary of a dwelling, a lesser-
included offense of Count 1, as the additional offense. As to Counts 1 and
2, Appellant was sentenced as a habitual felony offender to concurrent
terms of ten years in prison with credit for time served followed by
concurrent terms of ten years of probation. After sentencing, Appellant
gave notice of appeal.

                            Appellate Analysis

   Appellant argues that the dual burglary convictions and sentences
based on a single entry violate the constitutional prohibition against
double jeopardy. The determination of whether double jeopardy is violated
based upon undisputed facts is a pure question of law. Latos v. State, 39
So. 3d 511, 513 (Fla. 4th DCA 2010). As such, the standard of review is
de novo. Id.

  Appellant correctly relies on Hawkins v. State, 436 So. 2d 44 (Fla.
1983), in which our supreme court wrote:

      Hawkins next contends that he should not have been found
      guilty of both burglary counts since each count charged the
      same crime, although one was grounded in an assault
      committed during the burglary and the other in carrying a
      deadly weapon. We agree with this assertion and reverse

                                    2
      Hawkins’ conviction on one charge of burglary because the
      two counts constituted the same statutory offense under
      section 810.02, Florida Statutes (1979).

Id. at 46.

    As in Hawkins, Appellant here was charged with two burglaries, one
asserting he committed a battery during the burglary and the other
asserting he carried a deadly weapon. Although Appellant was not
convicted of burglary with a deadly weapon, he was nevertheless convicted
of a lesser-included burglary in Count 1, along with burglary with a battery
as charged in Count 2. Thus, the dual convictions and sentences violate
double jeopardy. See Coleman v. State, 956 So. 2d 1254, 1255 (Fla. 2d
DCA 2007) (determining that convictions and sentences for burglary of a
dwelling with assault or battery and armed burglary of a dwelling violate
double jeopardy, where there is only one entry); Trotman v. State, 545 So.
2d 890, 891 (Fla. 4th DCA 1989) (determining that convictions and
sentences for two counts of burglary, one alleging burglary with an assault
and the other alleging burglary with a battery, violated double jeopardy
where there was only one entry).

   The State acknowledges Hawkins, but argues that dual burglary
convictions are authorized by section 775.021(4)(b), Florida Statutes
(2017), which provides:

      (b) The intent of the Legislature is to convict and sentence for
      each criminal offense committed in the course of one criminal
      episode or transaction and not to allow the principle of lenity
      as set forth in subsection (1) to determine legislative intent.
      Exceptions to this rule of construction are:

      1. Offenses which require identical elements of proof.

      2. Offenses which are degrees of the same offense as provided
      by statute.

      3. Offenses which are lesser offenses the statutory elements
      of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat. More specifically, the State argues that none of
the exceptions in section 775.021(4)(b) apply to this case.

   Although when considering the offenses as charged, the State’s
argument seems facially correct, the flaw in the State’s argument is that

                                     3
for sentencing purposes, the trial court must consider the offenses for
which Appellant was found guilty by the jury. Using the correct focal
point, the State’s argument has no merit, because the verdict for Count 1
(burglary of a dwelling) demonstrates it is also a lesser-included offense of
Count 2 (burglary of a dwelling with a battery), where the statutory
elements of the lesser offense are subsumed by the greater offense.
Additionally, as found by the jury, one offense (Count 2) is a first-degree
felony burglary, and the other offense (Count 1) is a second-degree felony
burglary. Thus, sections 775.021(4)(b)2. and 3. apply to this case. For
that reason, we reject the State’s argument and conclude the trial court
improperly convicted Appellant of both counts of burglary where there was
only one entry.

    To remedy this error, one conviction and both sentences should be
vacated, and where the sentencing scoresheet contains points for both
convictions, the cause should be remanded for resentencing on the greater
offense. Coleman, 956 So. 2d at 1257.

   Appellant argues that he is entitled to a new trial on the burglary charge
because “two counts of the same crime were improperly sent to the jury.”
However, Appellant has not cited any authority for this argument and we
reject the argument.

   Because the sentencing scoresheet contains points for both burglary
convictions, we reverse and remand for the trial court to vacate the
conviction for Count 1 (burglary) and the sentences for both counts and to
resentence Appellant as to Count 2 (burglary of a dwelling with a battery).

   Affirmed in part, reversed in part, and remanded with instructions.

GROSS and MAY, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                     4
