Florida District Courts of Appeal, 2015

Harris v. State

Harris v. State
Florida District Courts of Appeal · Decided March 18, 2015 · Conner, Gross, Klingensmith
190 So. 3d 88; 2015 Fla. App. LEXIS 3908; 2015 WL 1222677 (Southern Reporter, Third Series)

Harris v. State

Opinion of the Court

PER CURIAM..

We affirm appellant’s convictions of burglary of a dwelling with a battery, strong arm robbery, and felony-batteiy. No double jeopardy violation arises from the burglary/battery and felony battery convictions.. Felony battery is not subsumed within the burglary/battery conviction; fel*89ony 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., concur.

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