          Supreme Court of Florida
                                  ____________

                                  No. SC17-713
                                  ____________

                        DIEGO TAMBRIZ-RAMIREZ,
                                Petitioner,

                                         vs.

                             STATE OF FLORIDA,
                                 Respondent.

                                  [July 12, 2018]

CANADY, C.J.

      In this case we consider whether convictions for aggravated assault,

attempted sexual battery, and burglary with an assault or battery, which arose

during a single criminal episode, violate the prohibition against double jeopardy.

We have for review Tambriz-Ramirez v. State, 213 So. 3d 920, 923-25 (Fla. 4th

DCA 2017), in which the Fourth District Court of Appeal held that because

burglary with an assault or battery does not necessarily include an aggravated

assault or attempted sexual battery, Tambriz-Ramirez’s convictions do not violate

the prohibition against double jeopardy. The Fourth District certified conflict with

Dykes v. State, 200 So. 3d 162 (Fla. 5th DCA 2016), Hankins v. State, 164 So. 3d
738 (Fla. 5th DCA 2015), Smith v. State, 154 So. 3d 523 (Fla. 1st DCA 2015),

McGhee v. State, 133 So. 3d 1137 (Fla. 5th DCA 2014), Green v. State, 120 So. 3d

1276 (Fla. 1st DCA 2013), Estremera v. State, 107 So. 3d 511 (Fla. 5th DCA

2013), White v. State, 753 So. 2d 668 (Fla. 1st DCA 2000), and Baldwin v. State,

790 So. 2d 434 (Fla. 1st DCA 2000). We have jurisdiction. See art. V, § 3(b)(4),

Fla. Const. For the reasons we explain, we approve the Fourth District’s decision

in Tambriz-Ramirez and disapprove the conflicting decisions to the extent that they

conflict with this opinion. We also disapprove the decision of the Fifth District in

Farrier v. State, 145 So. 3d 199 (Fla. 5th DCA 2014), to the extent that it conflicts

with this opinion.

                                I. BACKGROUND

      The facts of the case as set forth in the Fourth District’s opinion below are as

follows:

             [In 2010, a]rmed with a knife and using a shirt as a mask,
      appellant broke into the victim’s home at night and attempted to
      sexually batter her. The victim testified that during the attack,
      appellant put the knife to her face and neck. The victim fought off the
      attacker and, after pulling off the mask, recognized appellant, whom
      she knew. Appellant ultimately confessed his guilt to police and sent
      letters to the victim before trial, apologizing and asking her to drop
      the charges.
             The State charged appellant as follows: Count 1, Burglary of a
      Dwelling with an Assault or Battery While Armed and Masked; Count
      2, Aggravated Assault with a Deadly Weapon While Masked; and
      Count 3, Attempted Sexual Battery—Person 12 Years of Age or
      Older—Using Great Force or a Deadly Weapon.


                                        -2-
             The jury convicted appellant as charged on all counts and in a
      special interrogatory on the verdict form for Count 1 found that during
      the commission of the burglary he was armed or became armed with
      “a deadly weapon.” The court sentenced him to life in prison for the
      burglary, a consecutive 15 years in prison for the aggravated assault,
      and a consecutive 30 years in prison for the attempted sexual battery.
      Following this Court’s remand on direct appeal, appellant was
      resentenced to 15 years in prison for the attempted sexual battery. See
      Tambriz–Ramirez[ v. State], 112 So. 3d [767, ]768.
             Appellant filed a timely amended motion for postconviction
      relief under Florida Rule of Criminal Procedure 3.850 raising various
      issues, including a claim that his trial attorney was ineffective in
      failing to raise a double jeopardy violation. The trial court held an
      evidentiary hearing and entered an order denying all of appellant’s
      claims. As to the double jeopardy issue, the trial court concluded that
      the outcome of the proceedings would not have differed because
      appellant received a life sentence.

Tambriz-Ramirez, 213 So. 3d at 921.

      On appeal from the denial of his motion for postconviction relief, Tambriz-

Ramirez argued that the trial court erred in concluding that no prejudice occurred

in the alleged double jeopardy violation and that Count 2, aggravated assault, and

Count 3, attempted sexual battery, were subsumed within Count 1, burglary with

an assault or battery, and therefore violated the prohibition against double

jeopardy. Id. The district court agreed that the trial court erred in concluding that

Tambriz-Ramirez was not “prejudiced” by the alleged double jeopardy violation

but nonetheless affirmed the denial of relief, concluding that because neither

aggravated assault nor attempted sexual battery is subsumed within the offense of

burglary with an assault or battery, Tambriz-Ramirez’s convictions for separate



                                         -3-
offenses arising from this same criminal episode did not violate double jeopardy.

Id. at 922.

      The district court explained that because burglary with an assault or battery

does not necessarily include an aggravated assault, aggravated assault is not

subsumed within a burglary with an assault or battery offense. Id. at 923. “Simply

stated, a defendant can commit a burglary with an assault or battery without also

committing an aggravated assault.” Id. For analogous reasons, the district court

also rejected Tambriz-Ramirez’s claim that his attempted sexual battery conviction

is subsumed within his burglary with an assault or battery conviction. Id. at 925

(citing State v. Nardi, 779 So. 2d 596, 597 (Fla. 4th DCA 2001) (“[T]he offenses

of attempted sexual battery and burglary of a dwelling with battery do not violate

double jeopardy principles.”)).

      In certifying conflict with decisions of the First and Fifth Districts, the

Fourth District explained:

      [S]ome decisions of the First and Fifth District Courts of Appeal have
      held that convictions for burglary with an assault and aggravated
      assault violate double jeopardy. In reaching this conclusion, these
      courts may have relied on the fact the defendant was charged and
      convicted of using or being armed with a firearm as to both the
      burglary and aggravated assault offenses. For example, in Baldwin v.
      State, 790 So. 2d 434, 435 (Fla. 1st DCA 2000), the First District
      held:

              Because all of the elements of the crime of aggravated
              assault with a firearm are contained within the crime of
              burglary with assault while armed with a firearm,


                                         -4-
      Baldwin’s dual convictions are in violation of the
      prohibition against double jeopardy.

Id. at 435; see also Smith v. State, 154 So. 3d 523, 524 (Fla. 1st DCA
2015) (concluding that aggravated assault convictions were subsumed
within a conviction for armed burglary with assault); McGhee v. State,
133 So. 3d 1137, 1138 (Fla. 5th DCA 2014) (reversing “the
conviction for aggravated assault with a firearm because it is
subsumed into the greater offense of burglary of a dwelling with an
assault or battery while armed with a firearm”); Green v. State, 120
So. 3d 1276, 1278 (Fla. 1st DCA 2013) (same); Estremera v. State,
107 So. 3d 511 (Fla. 5th DCA 2013) (same); White v. State, 753 So.
2d 668, 669 (Fla. 1st DCA 2000) (same); cf. Dykes v. State, 200 So.
3d 162, 163 (Fla. 5th DCA 2016) (remanding a rule 3.850 claim for
the trial court to determine “if double jeopardy bars [defendant]’s
convictions for aggravated battery with a firearm and aggravated
assault with a firearm because they were subsumed into the greater
offense of burglary of a dwelling with an assault or battery with a
firearm”); Hankins v. State, 164 So. 3d 738, 738 (Fla. 5th DCA 2015)
(granting relief where the State conceded that “convictions for
aggravated battery with a firearm and aggravated assault with a
firearm violate double jeopardy because they were subsumed into the
greater offense of burglary of a dwelling with an assault or battery
with a firearm”).
        These holdings cannot be reconciled with the requirement that
the [double jeopardy] analysis be conducted “without regard to the
accusatory pleading or the proof adduced at trial.” § 775.021(4)(a)
Fla. Stat. (2009) (emphasis [added]). These cases seem to improperly
focus on the fact that the burglary and assault offenses were charged
and proven with a firearm. Much of the confusion may arise because
the reviewing courts looked at the title of the charges, the specific
allegations in the charging document, or the jury’s findings in its
verdict, instead of looking exclusively to the statutory elements of the
offenses. In any event, as is now clear, courts should not look beyond
the statutory elements when conducting a double jeopardy analysis.
        Accordingly, we certify conflict with the decisions of the First
and Fifth District Courts of Appeal in Dykes, Hankins, McGhee,
Green, Estremera, Baldwin, Smith and White, which hold that an
aggravated assault offense is subsumed within a burglary with an
assault or battery.


                                 -5-
Id. at 924-25 (second alteration in original).

      Based on the certified conflict, Tambriz-Ramirez petitioned this Court to

invoke its discretionary jurisdiction and we granted his petition. This review

follows.

                                   II. ANALYSIS

      The double jeopardy clauses, contained in the Fifth Amendment to the

United States Constitution and article I, section 9 of the Florida Constitution,

prohibit the imposition of multiple punishments for the same criminal offense.

U.S. Const. amend. V; art. I, § 9, Fla. Const. But the double jeopardy clauses do

not prohibit multiple punishments for different offenses arising out of the same

criminal transaction or episode if the Legislature intended to authorize separate

punishments. Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). “The Double

Jeopardy Clause ‘presents no substantive limitation on the legislature’s power to

prescribe multiple punishments,’ but rather, ‘seeks only to prevent courts either

from allowing multiple prosecutions or from imposing multiple punishments for a

single, legislatively defined offense.’ ” Borges v. State, 415 So. 2d 1265, 1267

(Fla. 1982) (quoting State v. Hegstrom, 401 So. 2d 1343, 1345 (Fla. 1981)).

Double jeopardy claims based on undisputed facts present questions of law and are

subject to de novo review. State v. Drawdy, 136 So. 3d 1209, 1213 (Fla. 2014).




                                         -6-
      Where multiple criminal offenses occur in the course of a single criminal

episode or transaction, courts employ the test set forth by the United States

Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932), which is

codified at section 775.021(4)(a), Florida Statutes, to determine whether receiving

separate punishments for each offense violates double jeopardy. Id. As codified in

Florida, that test provides:

            (4)(a) Whoever, in the course of one criminal transaction or
      episode, commits an act or acts which constitute one or more separate
      criminal offenses, upon conviction and adjudication of guilt, shall be
      sentenced separately for each criminal offense; and the sentencing
      judge may order the sentences to be served concurrently or
      consecutively. For the purposes of this subsection, offenses are
      separate if each offense requires proof of an element that the other
      does not, without regard to the accusatory pleading or the proof
      adduced at trial.

§ 775.021(4)(a), Fla. Stat. (2009); see also Blockburger, 284 U.S. at 304 (“The

applicable rule is that, where the same act or transaction constitutes a violation of

two distinct statutory provisions, the test to be applied to determine whether there

are two offenses or only one, is whether each provision requires proof of a fact

which the other does not.”). If the offenses are separate, such that multiple

punishments are authorized for the same criminal act, courts next look to the

exceptions found in section 775.021(4)(b). That subsection reads:

             (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



                                         -7-
      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. (2009). “Where even a single act constitutes multiple

separate criminal offenses, as defined in section 775.021(4)(a), the offender must

be sentenced separately for each offense unless one of the three exceptions in

section 775.021(4)(b) applies.” Roughton v. State, 185 So. 3d 1207, 1210 (Fla.

2016).

      The certified conflict here arises from the failure of the First and Fifth

Districts to properly apply section 775.021 in the line of conflict cases. In the

earliest of the conflict cases, Baldwin, decided on March 6, 2000, Baldwin was

convicted of “one count of first degree burglary of a dwelling with assault while

armed with a firearm and one count of aggravated assault with a firearm.” 790 So.

2d at 434 (footnote omitted). The entirety of the First District’s double jeopardy

analysis in Baldwin is as follows:

             Baldwin also challenges his dual convictions on the grounds
      that the convictions violate the prohibition against double jeopardy.
      Because all of the elements of the crime of aggravated assault with a
      firearm are contained within the crime of burglary with assault while
      armed with a firearm, Baldwin’s dual convictions are in violation of



                                         -8-
      the prohibition against double jeopardy. Henderson v. State, 727 So.
      2d 284 (Fla. 2d DCA 1999).

Id. at 435. Three days later, on March 9, 2000, in White, the First District

again relied on Henderson in finding a double jeopardy violation. White,

753 So. 2d at 669 (“Because all of the elements of the crime of aggravated

assault with a firearm are contained within the crime of burglary with assault

while armed with a firearm, White’s dual convictions are in violation of the

prohibition against double jeopardy. Henderson v. State, 727 So. 2d 284

(Fla. 2d DCA 1999).”). In Henderson, Henderson contended “and the State

concede[d]” that his convictions for “burglary and aggravated assault,”

“violate[d] double jeopardy.” 727 So. 2d at 285-86. The Second District

concluded that because the assault consisted of Henderson pointing a firearm

at his girlfriend after breaking into her house and the assault arose out of the

burglary, there was a double jeopardy violation. Id. at 286. But before

either Baldwin or White was decided, the Second District had already

receded from Henderson on January 12, 2000, in Washington v. State, 752

So. 2d 16 (Fla. 2d DCA 2000).

      In Washington, Washington contended that his convictions for

burglary with a battery and aggravated battery constituted a double jeopardy

violation. 752 So. 2d at 17. Unlike in Henderson, the Second District in

Washington cited and applied section 775.021(4), concluding “that since the


                                         -9-
State must prove an additional element to convict on an aggravated battery

charge, as opposed to a simple battery charge, subsection 775.[0]21(4)

authorizes separate punishments for first-degree burglary with a battery and

aggravated battery.” Id. at 17-18. The Second District stated:

             This appeal compels us to revisit our decision in Henderson v.
      State, 727 So. 2d 284 (Fla. 2d DCA 1999), from which we now recede
      to the extent that it conflicts with our decision here. The State
      convicted Henderson of first-degree burglary with an assault and
      aggravated assault. See id. This court reversed Henderson’s
      aggravated assault conviction after the State conceded error. See id. at
      286. Our opinion in Henderson cited several cases in support of its
      holding; however, upon closer review, those decisions are
      distinguishable from Henderson and the case sub judice.

Id. at 18 (footnote omitted). It is clear to us that Baldwin and White erroneously

relied on Henderson, failed to conduct a proper double jeopardy analysis, and were

wrongly decided.

      The next conflict case to be decided was Estremera by the Fifth District in

2013. Estremera challenged his convictions for aggravated assault with a firearm

and burglary with an assault while armed with a firearm on the grounds that the

convictions violated the prohibition against double jeopardy. 107 So. 3d at 512.

The Fifth District also relied on White (which erroneously relied on Henderson) to

conclude that a double jeopardy violation occurred because “[a]ll of the elements

of the crime of aggravated assault with a firearm are contained within the crime of




                                       - 10 -
burglary with assault while armed with a firearm.” Id. (quoting White, 753 So. 2d

at 669).

      Seven months after Estremera, the First District decided Green. Green

argued that his convictions for burglary with an assault or battery while armed with

a firearm and aggravated assault with a firearm constituted a double jeopardy

violation. 120 So. 3d at 1277. Relying on White and Estremera, the First District

concluded that “because 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

the prohibition against double jeopardy.” Id. at 1278 (citing White, 753 So. 2d at

669; Estremera, 107 So. 3d 511).

      In 2014, McGhee was decided by the Fifth District. McGhee argued that

because his convictions for burglary of a dwelling with assault or battery and

aggravated assault with a firearm “involve[d] the same victim and occurred in the

same incident, the convictions for battery and aggravated assault with a firearm

violate the constitutional prohibition against double jeopardy.” 133 So. 3d at 1138.

Citing Green (citing Estremera) and White, the Fifth District agreed and

“reverse[d] his conviction for aggravated assault with a firearm because it is

subsumed into the greater offense of burglary of a dwelling with an assault or

battery while armed with a firearm.” Id.


                                        - 11 -
      The First District decided Smith in 2015, in which it relied on Green and

White to conclude that Smith’s “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).” 154

So. 3d at 524.

      Also in 2015, the Fifth District decided Hankins. Hankins argued that “his

convictions for aggravated battery with a firearm and aggravated assault with a

firearm violate double jeopardy because they were subsumed into the greater

offense of burglary of a dwelling with an assault or battery with a firearm.” 164

So. 3d at 738. The Fifth District concluded that the State’s concession of error was

proper and reversed the convictions for aggravated battery with a firearm and

aggravated assault with a firearm, citing McGhee, 133 So. 2d at 1138-39, and

Farrier, 145 So. 3d at 199-200 (“[reversing] both convictions for aggravated

assault with a firearm because they were subsumed into the greater offense of

burglary of a dwelling with an assault or battery with a firearm”).1 Id.

      The most recent of the conflict cases is Dykes, decided by the Fifth District

in 2016. Dykes contended that his convictions for burglary of a dwelling with an

assault or battery with a firearm, aggravated battery with a firearm, and aggravated



      1. The Fourth District in Tambriz-Ramirez did not certify conflict with
Farrier.


                                        - 12 -
assault with a firearm violated the prohibition against double jeopardy. 200 So. 3d

at 162-63. The Fifth District agreed, citing McGhee and Estremera for support.

Id. at 163.

      None of the decisions in the eight conflict cases contains a proper double

jeopardy analysis in accordance with section 775.021. Instead, they all rely on

cases in a line which can be traced back to the erroneous decisions in Baldwin and

White. When a proper double jeopardy analysis is conducted in accordance with

section 775.021(4)(b) and our recent decision in Roughton, 185 So. 3d 1207, it is

clear that Tambriz-Ramirez’s convictions do not violate the prohibition against

double jeopardy.

      The Fourth District below conducted a proper double jeopardy analysis in

this case:

             Appellant’s double jeopardy claim is based on his contention
      that the aggravated assault and attempted sexual battery offenses are
      “subsumed within” the burglary offense. In relevant part, the burglary
      statute provides:
                    [(1)(b) For offenses committed after July 1, 2001,
              “burglary” means:
                     1. Entering a dwelling, a structure, or a
              conveyance with the intent to commit an offense
              therein . . . .]
                     (2) Burglary is a felony of the first degree,
              punishable by imprisonment for a term of years not
              exceeding life imprisonment or as provided in s. 775.082,
              s. 775.083, or s. 775.084, if, in the course of committing
              the offense, the offender:

                                        - 13 -
             (a) Makes an assault or battery upon any person; or

             (b) Is or becomes armed within the dwelling,
      structure, or conveyance, with explosives or a dangerous
      weapon; or

             (c) Enters an occupied or unoccupied dwelling or
      structure, and:

             1. Uses a motor vehicle as an instrumentality,
      other than merely as a getaway vehicle, to assist in
      committing the offense, and thereby damages the
      dwelling or structure; or

            2. Causes damage to the dwelling or structure, or
      to property within the dwelling or structure in excess of
      $1,000.
§ 810.02(2), Fla. Stat. (2009).
             (1) An “aggravated assault” is an assault:

             (a) With a deadly weapon without intent to kill; or

             (b) With an intent to commit a felony.

§ 784.021, Fla. Stat. (2009). A simple “assault” is “an intentional,
unlawful threat by word or act to do violence to the person of another,
coupled with an apparent ability to do so, and doing some act which
creates a well-founded fear in such other person that such violence is
imminent.” § 784.011(1), Fla. Stat. (2009).
       Appellant was charged and convicted of a first-degree felony
burglary with an assault or battery, and he was also found to have
been armed with a deadly weapon during the burglary. His
aggravated assault was based on his use of the same deadly weapon.
However, the analysis must be conducted “without regard to the
accusatory pleading or the proof adduced at trial.” § 775.021(4)(a),
Fla. Stat. (2009). The Florida Supreme Court emphasized this in
Roughton, where it held that, when considering a statute that
proscribes conduct in the alternative (offenses that can be committed
in more than one way), the analysis must consider the entire range of



                                  - 14 -
      conduct prohibited by the statutes, not the specific conduct charged or
      proven at trial. 185 So. 3d at 1210-11.
            Thus, the fact that appellant was charged and found guilty of a
      burglary with an assault or battery while armed with a deadly weapon
      and that he was also charged and found guilty of aggravated assault
      with a deadly weapon is irrelevant. Examining strictly the statutory
      elements and the entire range of conduct proscribed by these statutes
      demonstrates that these are separate offenses for which the Legislature
      intends separate punishments. The statutory elements of aggravated
      assault include (a) use of a deadly weapon or (b) intent to commit a
      felony, and neither of these elements is subsumed within a burglary
      with an assault or battery. We also observe that being or becoming
      armed with a dangerous weapon during a burglary, which can include
      mere possession of the weapon, is distinct from using a deadly
      weapon to commit an aggravated assault.
            The subsumed-within exception of section 775.021(4)(b)3,
      applies “only if the greater offense necessarily includes the lesser
      offense.” State v. McCloud, 577 So. 2d 939, 941 (Fla. 1991).
      Aggravated assault is not necessarily included within a burglary with
      an assault or battery offense. Simply stated, a defendant can commit a
      burglary with an assault or battery without also committing an
      aggravated assault.

Tambriz-Ramirez, 213 So. 3d at 922-23.

      Similarly, the offenses of attempted sexual battery and burglary of a

dwelling with battery do not violate double jeopardy principles. “ ‘Sexual battery’

means oral, anal, or vaginal penetration by, or union with, the sexual organ of

another or the anal or vaginal penetration of another by any other object; however,

sexual battery does not include an act done for a bona fide medical purpose.”

§ 794.011(1)(h), Fla. Stat. (2009). In order to prove the crime of attempted sexual

battery, the State must prove that (1) the defendant did some act towards

committing the crime of sexual battery that went beyond just thinking about it and


                                       - 15 -
(2) the defendant would have committed the crime of sexual battery except that

someone prevented him from committing the crime or he failed to commit the

crime. § 777.04(1), Fla. Stat. (2009); Fla. Std. Jury Instr. (Crim.) 5.1. The

burglary statute prohibits

             1. Entering a dwelling, a structure, or a conveyance with the
      intent to commit an offense therein, unless the premises are at the time
      open to the public or the defendant is licensed or invited to enter; or

            2. Notwithstanding a licensed or invited entry, remaining in a
      dwelling, structure, or conveyance:
             a. Surreptitiously, with the intent to commit an offense therein;
             b. After permission to remain therein has been withdrawn, with
      the intent to commit an offense therein; or
            c. To commit or attempt to commit a forcible felony, as
      defined in s. 776.08.

§ 810.02(1)(b), Fla. Stat. (2009).2 Each offense clearly requires proof of elements

the other does not, and the statutory elements of an attempted sexual battery are not

subsumed within the elements of burglary with a battery. In other words, one can

commit a burglary with a battery without committing an attempted sexual battery.

      Tambriz-Ramirez also argues that aggravated assault and attempted sexual

battery are degree variants of burglary with an assault or battery, and therefore




       2. And burglary is a felony of the first degree, punishable by imprisonment
for a term of years not exceeding life imprisonment, if, in the course of committing
the offense, the offender makes an assault or battery upon any person.
§ 810.02(2)(a), Fla. Stat. (2009).

                                        - 16 -
convictions for both violate the prohibition against double jeopardy under section

775.021(4)(b)2., Fla. Stat. (2009). Section 775.021(4)(b)2. prohibits multiple

convictions and sentences for “[o]ffenses which are degrees of the same offense as

provided by statute.” (Emphasis added.) Tambriz-Ramirez’s argument here fails

because burglary, assault, and sexual battery are not different degrees of “the same

offense.” See Valdes, 3 So. 3d at 1076 (holding that the degree-variant exception

applies “only when the statute itself provides for an offense with multiple

degrees”); State v. Reardon, 763 So. 2d 418, 420 (Fla. 5th DCA 2000) (“[T]he two

offenses [burglary with a battery and aggravated battery] are not degrees of the

same crime . . . .”). In Valdes, we held that section 775.021(4)(b)2. “prohibits

separate punishments only when a criminal statute provides for variations in degree

of the same offense, so that the defendant would be punished for violating two or

more degrees of a single offense.” 3 So. 3d at 1076 (quoting State v. Paul, 934 So.

2d 1167, 1177 (Fla. 2006) (Cantero, J., specially concurring)). The crimes here are

different offenses, prohibited by different statutes, and they criminalize different

conduct.

      Nonetheless, Tambriz-Ramirez urges this Court to conclude that “[w]hen a

statute implicitly (or explicitly) relies on another statute’s elements for purposes of

an enhancement, and can only establish that enhancement by tracking the other

statute’s language, then the legislature has established a relationship of degrees


                                         - 17 -
between the same offense,” Petitioner’s [Initial] Brief at 25, Tambriz-Ramirez v.

State, No. SC17-713 (Fla. Aug. 16, 2017), and thus “intended to disallow separate

punishments for degree variants of one another, regardless of whether they are

contained within separate statutes,” id. at 27. We reject that argument, because it

directly contravenes the plain language of section 775.021(4)(b)2.

      Finally, Tambriz-Ramirez relies on our decision in Cleveland v. State, 587

So. 2d 1145 (Fla. 1991), to argue that “this Court has held that double jeopardy

convictions occur when a defendant receives cumulative punishments based on

enhanced conviction [sic] by use or possession of a firearm and a separate

conviction based on the same act.” Petitioner’s [Initial] Brief at 7, Tambriz-

Ramirez v. State, No. SC17-713 (Fla. Aug. 16, 2017); see also id. at 32. But our

holding in Cleveland was very narrow. In Cleveland, we held

      that when a robbery conviction is enhanced because of the use of a
      firearm in committing the robbery, the single act involving the use of
      the same firearm in the commission of the same robbery cannot form
      the basis of a separate conviction and sentence for the use of a firearm
      while committing a felony under section 790.07(2).

Cleveland, 587 So. 2d at 1146. Thus, Cleveland does not prohibit Tambriz-

Ramirez’s multiple convictions here.

                               III. CONCLUSION

      For the reasons explained above, we approve the decision of the Fourth

District in Tambriz-Ramirez, and disapprove the conflicting decisions of the First



                                       - 18 -
and Fifth Districts in Dykes, Hankins, Smith, McGhee, Green, Estremera, White,

and Baldwin, and the decision of the Fifth District in Farrier to the extent that they

conflict with this opinion.

      It is so ordered.

PARIENTE, POLSTON, LABARGA, and LAWSON, JJ., concur.
LEWIS, J., concurs in result.
QUINCE, J., dissents with an opinion.

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

QUINCE, J., dissenting.

      As I have previously stated, “section 775.021(4), Florida Statutes—which

requires a double jeopardy analysis to be conducted without regard to the specific

charges against a defendant or which charges have been proven—is antithetical to

the purpose and meaning of the double jeopardy clauses of both the United States

and Florida Constitutions.” Roughton, 185 So. 3d at 1211 (Quince, J., dissenting).

In this case, as in Roughton, I would consider only the allegations against the

defendant and what the State proved to conduct a proper double jeopardy analysis.

      Here, Tambriz-Ramirez was convicted as charged of burglary with assault or

battery while armed and aggravated assault with a deadly weapon. Tambriz-

Ramirez, 213 So. 3d at 921. Tambriz-Ramirez was found to have been armed with

a deadly weapon, and both the aggravated assault and burglary with assault or

battery were based on his use of the same deadly weapon. Id. at 923. A burglary

                                        - 19 -
with assault or battery requires (1) “[e]ntering a dwelling, a structure, or a

conveyance with the intent to commit an offense therein” and (2) “[m]ak[ing] an

assault or battery upon any person . . . with . . . a dangerous weapon.”

§ 810.02(1)-(2), Fla. Stat. An aggravated assault requires (1) an assault “[w]ith a

deadly weapon without intent to kill” or (2) with an intent to commit a felony.

§ 784.021, Fla. Stat. Reviewing the statutes, burglary with assault or battery

contains the element of entering a dwelling, structure, or conveyance, while

aggravated assault does not. However, the remaining elements of both crimes

punish the same conduct. Therefore, it cannot be said that each offense has an

element the other does not have in order to satisfy Blockburger.

      I would conclude that double jeopardy precludes convictions for both

burglary with assault or battery and aggravated assault based on the same conduct,

quash the decision below, and approve the conflict cases. Accordingly, I dissent.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

      Fourth District - Case No. 4D15-2957

      (Martin County)

Rocco J. Carbone, III, Law Offices of Rocco J. Carbone, III, PLLC, St. Augustine,
Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau
Chief, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, Florida,

                                         - 20 -
for Respondent




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