BAILEY v. STATE (2020)

District Court of Appeal of Florida, Fifth District.

Darrell Wayne BAILEY, Appellant, v. STATE of Florida, Appellee.

Case No. 5D18-251

Decided: January 03, 2020

James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

Darrell Bailey was convicted, after trial, of numerous offenses. He raises several issues on appeal—one of which we find meritorious. Bailey's convictions and sentences for both armed burglary (count VI) and burglary with assault or battery (count VII) violate the prohibition against double jeopardy. See Hawkins v. State, 436 So. 2d 44, 46 (Fla. 1983) (holding that it was error to convict defendant of both burglary with assault and burglary while armed with deadly weapon because the two counts constituted same offense under section 810.02, Florida Statutes (1979)); see also Zeigler v. State, 73 So. 3d 828, 829 (Fla. 4th DCA 2011) (holding that dual convictions for burglary while armed with firearm and burglary with battery occurring during single entry into vehicle violated prohibition against double jeopardy).

On remand, the trial court shall vacate Bailey's conviction and sentence on either count VI or VII and resentence him. We affirm as to all other issues.

AFFIRMED in part; REVERSED in part; REMANDED.

PER CURIAM.

EVANDER, C.J., EDWARDS and HARRIS, JJ., concur.

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