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Sanders v. State

Florida Court of Appeal, Fifth District

November 10, 2011

Tony Lamont SANDERS, Appellant,
v.
STATE of Florida, Appellee.

Appeal from the Circuit Court for Hernando County, Stephen Rushing, Judge.

James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Tony Sanders was convicted of attempted burglary of a dwelling with a battery, contributing to the delinquency of a minor, and battery. On appeal, he correctly argues that double jeopardy principles preclude his convictions for both attempted burglary with a battery and battery. We reject the State's argument that both convictions should be upheld because the jury could have found that Sanders committed two separate batteries. Where, as in the instant case, it is impossible to tell from the verdict form if the jury found that the defendant had committed two distinct batteries or only a single battery, the verdict must be read in a manner that would give the benefit of the doubt to the defendant. See Young v. State, 43 So.3d 876 (Fla. 5th DCA 2010); Partch v. State, 43 So.3d 758 (Fla. 1st DCA 2010); Torna v. State, 742 So.2d 366 (Fla. 3d DCA 1999). Accordingly,

Page 562

we vacate the conviction of (simple) battery.

AFFIRMED, in part; REVERSED, in ...


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