              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

GARY B. MAYS,                                )
                                             )
             Appellant,                      )
                                             )
v.                                           )   Case No. 2D13-1273
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed August 21, 2015.

Appeal from the Circuit Court for Sarasota
County; Donna Padar Berlin, Judge.

Howard L. Dimmig, II, Public Defender, and
Dane K. Chase, Special Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and John M. Klawikofsky,
Assistant Attorney General, Tampa,
for Appellee.


NORTHCUTT, Judge.


             A jury convicted Gary Mays of first-degree felony witness tampering and of

two third-degree felony counts of being a principal to perjury. We reverse the witness

tampering conviction because it violated double jeopardy.
              One of the principal-to-perjury charges was based on Mays's procuring of

witness L.B. to testify falsely in a deposition in another criminal proceeding. See

§§ 777.011, 837.02(1), Fla. Stat. (2011). The tampering charge concerned Mays's offer

of pecuniary gain to induce L.B. to testify untruthfully in that deposition. See §

914.22(1)(f), Fla. Stat. (2011). Mays argues that he could not properly be convicted of

both charges based on the single incident.

              Section 775.021(4), Florida Statutes (2011), expresses the Legislature's

intention that a defendant be convicted and sentenced for each separate criminal

offense committed in the course of a criminal episode. But the statute makes an

exception in the event of "[o]ffenses which are lesser offenses the statutory elements of

which are subsumed by the greater offense." § 775.021(4)(b)(3). To determine

whether an offense is subsumed, the elements of each crime must be examined,

without regard to the charging document or the evidence presented at trial. Pizzo v.

State, 945 So. 2d 1203, 1207 (Fla. 2006); see also Shelley v. State, 134 So. 3d 1138

(Fla. 2d DCA), approved, 40 Fla. L. Weekly S362, S364 (Fla. June 25, 2015).

              The elements of principal to perjury are:

              1. The defendant (Mays) had a conscious intent that the
              criminal act would be done; and

              2. He did some act that was intended to aid, abet, counsel,
              hire, or otherwise procure a person (L.B.) to commit the
              crime of perjury; and

              3. The person took an oath in an official proceeding; and

              4. While under oath, she made a false statement that she
              did not believe to be true.


                                             -2-
See §§ 777.011, 837.02(1). The elements of tampering are:

             1. The defendant (Mays) knowingly used intimidation, force,
             or threats; or engaged in misleading conduct or offered
             pecuniary benefit to a person (L.B.).

             2. The defendant did so with intent to induce the person to
             testify untruthfully in an official investigation or an official
             proceeding.1

See § 914.22(1).

             As can be seen, the principal-to-perjury crime contains all the elements of

the tampering crime, and in addition it requires that the induced person actually make

the false statement in the official proceeding. Therefore, the elements of the latter were

subsumed by the former, and Mays's conviction of both crimes based on the same

incident violated double jeopardy. See § 775.021(4)(b)(3).

             The remedy is to vacate the conviction for the lesser offense. Because

the elements of the tampering crime are subsumed by the principal-to-perjury crime, the

tampering crime is the lesser offense, regardless of which of them carries the greater

penalty. See Pizzo, 945 So. 2d at 1206; Tuttle v. State, 137 So. 3d 393 (Fla. 2d DCA),

review granted, 147 So. 3d 527 (Fla. 2014). Accordingly, we reverse and remand to the

circuit court with directions to vacate Mays’s conviction and sentence for tampering with




             1
                Although Florida Standard Jury Instruction (Criminal) 21.10 requires the
jurors to make a finding concerning the official investigation or proceeding, that finding
is necessary only to determine the degree of the tampering charge. As the lesser
included offense portion of the instruction states: "The degree of this crime depends on
the severity of the underlying offense that is the subject of the tampering. See
§ 914.22(2), Fla. Stat." Cf. § 837.02(1), (2) (distinguishing degree of perjury crime
based on degree of underlying crime).

                                            -3-
a witness in violation of section 914.22. This disposition moots Mays's other issue on

appeal.

             Reversed and remanded with directions.




SILBERMAN and MORRIS, JJ., Concur.




                                           -4-
