Hale Harris v. State

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT HALE HARRIS, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D13-3744 [March 18, 2015] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 12-4901CF10A. Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. We affirm appellant’s convictions of burglary of a dwelling with a battery, strong arm robbery, and felony battery. No double jeopardy violation arises from the burglary/battery and felony battery convictions. Felony battery is not subsumed within the burglary/battery conviction; felony battery contains an element that battery does not—the existence of a prior conviction. See State v. Rothwell, 981 So. 2d 1279, 1281 (Fla. 1st DCA 2008) (“The prior battery conviction is a necessary element of th[e felony battery] offense.” (citing R.R. v. State, 920 So. 2d 146 (Fla. 5th DCA 2006)). We remand to the circuit court for the trial judge to impose sentence on the felony battery charge. See Murphy v. State, 16 So. 3d 269, 269 (Fla. 5th DCA 2009). GROSS, CONNER and KLINGENSMITH, JJ., concour. * * * Not final until disposition of timely filed motion for rehearing.