SAMPAIO v. STATE (2020)

In a timely petition filed pursuant to Florida Rule of Appellate Procedure 9.141(d), Deoclecio Sampaio alleges that his appellate counsel was ineffective for failing to argue on direct appeal that the amended information was defective. We deny the petition on the merits.

Petitioner was charged by amended information with home invasion robbery with a firearm and grand theft of a firearm. He pleaded not guilty, and the jury found him guilty of the lesser included offense of robbery and guilty of grand theft as charged. The jury was instructed on lesser included offenses, including robbery, and was instructed as to both the elements of home invasion robbery and simple robbery. Petitioner's judgment was affirmed on direct appeal.

Petitioner now argues that appellate counsel was ineffective for failing to argue on direct appeal that the amended information was defective in that it failed to allege the elements necessary to prove simple robbery and that it failed to allege any facts supporting a conviction for simple robbery.

Petitioner argues that his conviction for robbery cannot stand because the amended information failed to specifically reference section 812.13, Florida Statutes, the simple robbery statute, or to articulate the elements of simple robbery. The elements of robbery, as defined by section 812.13, Florida Statutes, are wholly encompassed within the elements of home invasion robbery, as defined by section 812.135, Florida Statutes. Robbery is a necessarily lesser included offense of home invasion robbery. See Fla. Std. Jury Instr. (Crim.) 15.3.

Further, home invasion robbery requires the commission of a robbery. The amended information charged Petitioner with home invasion robbery in violation of section 812.135(1) and (2)(a) and specifically alleged that he did commit a robbery. Thus, Petitioner was on notice that he was being charged with robbery.

A defendant may be convicted of any lesser-included offense charged in the indictment or information. See Fla. R. Crim. P. 3.510(b). “Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense.” Slack v. State, 30 So. 3d 684, 687 (Fla. 1st DCA 2010) (quoting Carle v. State, 983 So. 2d 693, 695 (Fla. 1st DCA 2008)). Robbery is subsumed within, and therefore a necessarily lesser included offense to, home invasion robbery. See Brock v. State, 911 So. 2d 271, 273 (Fla. 5th DCA 2005); Brown v. State, 269 So. 3d 48 n.2 (Fla. 4th DCA 2018). Because the elements of simple robbery are always subsumed within the offense of home invasion robbery, Petitioner's conviction for simple robbery is supported by the allegations of home invasion robbery in the information.

Accordingly, as the issue was without merit, appellate counsel was not deficient in failing to raise it on appeal. See Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000). The petition is denied.

B.L. Thomas, J.

Lewis and Nordby, JJ., concur.