final until disposition of timely filed motion for rehearing.
of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Michael Ian
Rothschild, Judge; L.T. Case No. 69003660CF10A.
Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
B. Rawls appeals the denial of his rule 3.800(a) motion. The
appellant was sentenced to life in prison for a 1969 burglary
offense. He now contends that his offense was punishable by a
maximum of twenty years in prison, and therefore, that his
life sentence is illegal. We agree with appellant based on
the information, the jury's verdict, the written
judgment, and the applicable statute. As a result, we reverse
and remand for resentencing.
information charged appellant in a single count with
"break[ing] and enter[ing] a dwelling house . . . with
intent to commit a felony therein, to-wit: Rape, contrary to
F.S. 810.01." The information did not reference a
specific subsection of section 810.01, Florida Statutes
(1967), to indicate whether appellant was charged with
burglary of a dwelling under subsection (2), which was
punishable by twenty years in prison, or charged under
subsection (1), which set forth an aggravated burglary
offense punishable by life imprisonment. See §
810.01, Fla. Stat. (1967). Nevertheless, as discussed below,
the language of the information plainly charged appellant
with the lesser burglary offense under subsection (2).
trial, the jury found appellant guilty as charged in the
information. The verdict form and judgment reflect that
appellant was convicted of "BREAKING AND ENTERING A
DWELLING HOUSE WITH INTENT TO COMMIT A FELONY, TO-WIT:
RAPE." The trial court sentenced appellant to life in
prison with the possibility of parole. Although appellant was
paroled at one point, he was later re-imprisoned.
2017, appellant filed a motion to correct illegal sentence
contending that his life sentence exceeded the statutory
maximum for his offense. His claim was based on the foregoing
documents and the applicable burglary statute. The 1967
version of the statute provided:
(1)Whoever breaks and enters a dwelling
house, or any building or structure within the
curtilage of a dwelling house though not forming a part
thereof, with intent to commit a felony, or after
having entered with such intent breaks such dwelling house or
other building or structure aforesaid, if he be
armed with a dangerous weapon, or
have with him any nitroglycerine, dynamite, gunpowder or
other high explosive at the time of breaking and entering,
or if he arm himself with a dangerous
weapon, or take into his possession any such
high explosive within such building, or if he make an
assault upon any person lawfully therein, shall be punished
by imprisonment in the state prison for life, or for
such term of years as may be determined by the court.
(2)If the offender be not armed, nor arm
himself with a dangerous weapon as aforesaid, nor have with
him nor take into his possession any high explosive as
aforesaid, nor make an assault upon any person
lawfully in said building, he shall be punished by
imprisonment in the state prison not exceeding twenty
§ 810.01, Fla. Stat. (1967) (emphases added),
repealed by Ch. 74-383, § 66, Laws of Fla.
See also Ch. 74-383, § 31, Laws of Fla.
(reorganizing this burglary statute into three subsections
and moving it to section 810.02). Because appellant was
neither charged with nor convicted of any aggravating
circumstances during the burglary, such as being armed or
committing an assault, he reasoned that his conviction fell
under subsection (2), and that his prison sentence should
have been capped at twenty years.
trial court denied appellant's rule 3.800(a) motion based
on the State's contention that he had been properly
charged, convicted, and sentenced under subsection (1).
Noting the information alleged that appellant committed the
burglary with the intent to commit rape-and the jury
so found-the court determined that the intended rape
constituted the assault necessary to sustain a
conviction and sentence under subsection (1).
as appellant points out on appeal, the trial court wrongly
equated the intent to commit a rape (or an assault)
with the actual commission of an assault. See
Cochenet v. State, 445 So.2d 398, 399 (Fla. 5th DCA
1984) (emphasis omitted) ("[T]he amended information
charged [defendant] entered the trailer with the intent to
commit aggravated assault; it did not allege that the assault
actually occurred."). Here, appellant was charged, found
guilty, and convicted of the lesser burglary offense under
subsection (2), that is, burglary of a dwelling with
intent to commit a felony. No aggravating
circumstances were alleged or submitted to the jury, as would
be required to obtain a conviction under subsection (1).
See § 810.01(1), Fla. Stat. (1967) (setting