          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-3782
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TIMOTHY BARBER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Robert R. Wheeler, Judge.

                         January 10, 2019


WETHERELL, J.

     Appellant was convicted of multiple offenses arising out of a
fight in the parking lot of a fried chicken restaurant, including
“burglary of conveyance with person assaulted” (count I) and
battery (count III). Appellant raises four issues on appeal, only
one of which merits discussion: whether his convictions on counts
I and III violate double jeopardy. We affirm.

    Appellant was charged in count I with burglary of a
conveyance with assault or battery, 1 and he was charged in count

    1  See § 810.02(2)(a), Fla. Stat. (2016) (“Burglary is a felony of
the first degree, punishable by imprisonment for a term of years
III with aggravated battery with a deadly weapon. Both offenses
involved the same victim and occurred during the same criminal
episode, and both offenses were predicated on the same act: a
beating administered to the victim while he was sitting in his car.

     The jury found Appellant guilty as charged on count I and
guilty of the lesser included offense of battery on count III. On
count I, the jury specifically found that in the course of the
burglary Appellant committed both an assault and a battery. 2 The
trial court adjudicated Appellant guilty of both offenses and
sentenced him to the scoresheet minimum of 97.43 months in
prison on count I and time-served on count III. 3

     Appellant contends that his convictions on counts I and III
violate double jeopardy. We review this claim de novo. Graham v.
State, 207 So. 3d 135, 137 (Fla. 2016) (“Double jeopardy claims
based on undisputed facts present questions of law and are subject
to de novo review.”).

     Double jeopardy bars dual convictions for burglary with
battery and simple battery. See Spradley v. State, 537 So. 2d 1058
(Fla. 1st DCA 1989). It also bars dual convictions for burglary with


not exceeding life imprisonment . . ., if, in the course of committing
the offense, the offender . . . [m]akes an assault or battery upon
any person.”) (emphasis supplied).
    2   The verdict form provided:




    3  The battery offense was listed as an “additional offense” on
the scoresheet, but for some reason, 0 points (rather than 0.2
points) were attributed to that offense. See § 921.0024(1)(a), Fla.
Stat. (2016) (providing for 0.2 points or each additional offense that
it a misdemeanor); Fla. R. Crim. P. 3.992(a) (same). Thus, the
battery conviction had no impact on Appellant’s scoresheet or
sentence.
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assault and/or battery and simple battery when it is unclear
whether the jury convicted the defendant of burglary with assault
or burglary with battery. See Babrow v. State, 62 So. 3d 1205 (Fla.
4th DCA 2011); Young v. State, 43 So. 3d 876 (Fla. 5th DCA 2010);
Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999).

     Here, the verdict form for count I reflects that the jury found
Appellant guilty of both burglary with assault and burglary with
battery. Accordingly, the cases cited above are distinguishable.
Cf. Torna, 742 So. 2d at 367 (suggesting that “in future cases
involving charges of a violation of section 810.02(2)(a), the jury be
tendered a verdict form that clearly indicates perhaps by boxes to
be checked off whether the conviction is of burglary with an assault
or burglary with a battery, so as to avoid the double jeopardy issues
addressed in the instant case.”).

     Double jeopardy does not bar dual convictions for burglary
with assault and simple battery because the offenses include
different elements and none of the exceptions in section 775.021(4),
Florida Statues, 4 apply. See Garcia v. State, 594 So. 2d 806, 807
(Fla. 1st DCA 1992) (“The elements of assault . . . and the elements
of battery . . . are distinctly different, and assault is not a
necessarily lesser included offense subsumed in the offense of
battery.”). Accordingly, because the jury verdict clearly shows that
Appellant was found guilty of burglary of a conveyance with
assault in count I, he could be convicted and sentenced for that
offense and the offense of battery in count III without violating
double jeopardy.

     For these reasons (and because we find no merit in the other
issues raised by Appellant), we affirm Appellant’s judgment and
sentence.



    4  The statute provides three exceptions to the general rule
that a defendant may be convicted and sentenced for each offense
committed in the course of a single criminal episode: (1) offenses
which require identical elements of proof; (2) offenses which are
degrees of the same offense as provided by statute; and (3) offenses
which are lesser offenses, the statutory elements of which are
subsumed by the greater offense. § 775.021(4)(b), Fla. Stat. (2016)
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    AFFIRMED.

WOLF and LEWIS, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Brooke Moody, Attorney General, and Heather Flanagan
Ross, Assistant Attorney General, Tallahassee, for Appellee.




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