Young v. State , 2010 Fla. App. LEXIS 12918 ( 2010 )

43 So. 3d 876 (2010)

David YOUNG, Appellant,
v.
STATE of Florida, Appellee.

No. 5D09-631.

District Court of Appeal of Florida, Fifth District.

September 3, 2010.

James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

We affirm, without discussion, Young's conviction for burglary of a conveyance with an assault or a battery.^[1] However, double jeopardy principles preclude Young's conviction for simple battery.

In the instant case, the verdict form gave no indication as to whether the jury found that Young had committed a "burglary with an assault," or a "burglary with a battery." We reverse as we must read the verdict in a manner that would give the benefit of the doubt to Young. State v. Reardon, 763 So. 2d 418, 419 n. 3 (Fla. 5th DCA 2000). Convictions for both burglary with a battery and for the lesser included offense of battery violate double jeopardy. See, e.g., West v. State, 21 So. 3d 916 (Fla. 5th DCA 2009); Bracey v. State, 985 So. 2d 704 (Fla. 5th DCA 2008).

The facts in this case, as acknowledged by the State, are almost indistinguishable from the factual scenario addressed in Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999). There, the jury similarly found the defendant guilty of burglary with an assault or a battery and of simple battery. The Torna court stated:

This verdict form is the crux of the problem here as it contained no indication as to whether the jury had found that Torna had committed a ``burglary with an assault,' or a ``burglary with a battery.' Given Torna's additional conviction of ``battery,' the determination of ``with an assault' or ``with a battery' was necessary so as to not run afoul of the double jeopardy issue. Since the determination was not made, and we cannot now guess what the jury was thinking, we must conclude that Torna was indeed subjected to double jeopardy by his conviction of both ``burglary with an assault and/or battery' and ``battery.'

Id. at 367.

Young cannot properly be convicted of both offenses. Accordingly, we vacate the conviction of (simple) battery.

AFFIRMED, in part; REVERSED, in part; REMANDED.

MONACO, C.J. and COHEN, J., concur.

NOTES

[1] § 810.02(2)(a), Fla. Stat. (2007).