Wesley v. State

77 So.3d 847 (2012)

Jerome WESLEY, Appellant,
v.
STATE of Florida, Appellee.

No. 5D11-861.

District Court of Appeal of Florida, Fifth District.

January 13, 2012.

James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

The appellant, Jerome Wesley, appeals from his convictions by jury of burglary with an assault or battery, assault, and attempted second degree murder of a law enforcement officer. We affirm in all respects save one. As the State admirably concedes, under the facts of this case because Mr. Wesley was convicted of burglary with an assault or battery, the conviction of simple assault runs afoul of the double jeopardy provisions of the constitution. See § 775.021(4)(b)3, Fla. Stat. (2011); see also Reeves v. State, 57 So.3d 874 (Fla. 5th DCA 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 515, ___ L.Ed.2d ___ (2011); Austin v. State, 699 So.2d 314 (Fla. 1st DCA 1997).

Accordingly, we vacate the conviction for simple assault, and otherwise affirm the judgment and sentence.

AFFIRMED in part, REVERSED in part.

ORFINGER, C.J. and EVANDER, J., concur.