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Fleming v. State

Florida Court of Appeal, Fifth District

December 2, 2011

Issac Nicholas Ray FLEMING, Appellant,
v.
STATE of Florida, Appellee.

Page 398

James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Appellant, Issac Nicholas Ray Fleming, appeals the denial of his motion to correct sentencing errors filed pursuant to Florida Rule of Criminal Procedure 3.800.[1] He

Page 399

raises three double jeopardy violations and contests the improper stacking of mandatory minimum sentences.[2] We affirm in part, reverse in part, and remand with instructions.

Fleming and a co-conspirator entered a home, sexually assaulted a female occupant, battered her husband, and stole property.[3] Both Fleming and his co-defendant were armed during the crime, trading turns brandishing a firearm and a knife. Fleming was charged, found guilty, and sentenced to two counts of home-invasion robbery with a firearm; burglary of a dwelling with an assault or battery with a firearm; sexual battery with a deadly weapon, a firearm; kidnapping with intent to inflict bodily harm or terrorize with a firearm; two counts of aggravated assault with the intent to commit a felony; two counts of aggravated assault with a deadly weapon, a firearm; and battery.

Fleming first argues that double jeopardy precludes the conviction of two counts of home-invasion robbery for entry into one home. A double jeopardy claim based on undisputed facts is reviewed de novo. Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006). There is no dispute Fleming entered only one residence, and both below and on appeal, the State concedes error. A defendant can be convicted of only one home-invasion under the facts of this case. See Bowers v. State, 679 So.2d 340, 341 (Fla. 1st DCA 1996). Accordingly, we reverse one home-invasion robbery conviction.

Next, Fleming contends that his convictions for both home-invasion robbery and burglary of a dwelling with an assault, arising from the same incident, violate double jeopardy. Again, the State properly concedes error. See generally Mendez v. State, 798 So.2d 749 (Fla. 5th DCA 2001) (stating convictions of home invasion robbery and burglary of dwelling with assault arising from same incident violate double jeopardy).[4] We vacate the burglary of a dwelling with an assault or battery conviction.

Further, Fleming challenges two of the four convictions of aggravated assault. He argues the second set of convictions of aggravated assault against the same two victims violates double jeopardy because it arose from the same criminal episode. We agree.

Fleming was convicted of two counts of aggravated assault with the intent to commit a felony for entering the victim's bedroom with the intent to rob her and her husband of certain items while threatening them with a gun and knife. Fleming moved his victims to a nearby room, stole another item, then moved them to a third room within the house. He was convicted of two additional counts of aggravated assault

Page 400

with a firearm for threatening them with a gun as he exited the third room.

" The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of the following factors: 1) whether separate victims are involved; 2) whether the crimes occurred in separate locations; and 3) whether there has been a temporal break between the incidents." Vasquez v. State,778 So.2d 1068, 1070 (Fla. 5th DCA 2001) (citations omitted). ...


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