No. AD-346 | Fla. Dist. Ct. App. | Jun 16, 1982
The appellant was indicted, tried, convicted, and sentenced on all three counts of an information charging: (1) first degree burglary; (2) aggravated battery; and (3) sexual battery. The burglary count of the information charged that the appellant entered a structure with the intent to commit an offense therein, to wit: sexual battery, and in the course of committing the offense the defendant did make an assault upon the victim by striking her about the head a,nd face with a large glass decanter in violation of §§ 810.02(1), .02(2)(a), Fla.Stat. The burglary count therefore alleges a first degree burglary which required proof of the assault. It did not require proof of the offenses of aggravated battery or sexual battery, which were Counts II and III. These two offenses require elements of proof different from the assault.
Appellant contends he cannot be convicted and sentenced of the aggravated battery and sexual battery charges. We disagree. It was not necessary to prove the offense of aggravated battery or sexual battery in order to prove the offense of burglary. It was only necessary to prove the commission of the assault during the burglary to sustain the burglary conviction and therefore neither of the offenses charged in Counts II and III were lesser included felonies. The convictions and sentences on all three counts of the information are affirmed.