DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      CHARLIE BENJAMIN RAWLS,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D17-665

                             [August 16, 2017]

   Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Michael Ian
Rothschild, Judge; L.T. Case No. 69003660CF10A.

  Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    Charlie B. Rawls appeals the denial of his rule 3.800(a) motion. The
appellant was sentenced to life in prison for a 1969 burglary offense. He
now contends that his offense was punishable by a maximum of twenty
years in prison, and therefore, that his life sentence is illegal. We agree
with appellant based on the information, the jury’s verdict, the written
judgment, and the applicable statute. As a result, we reverse and remand
for resentencing.

   The information charged appellant in a single count with “break[ing]
and enter[ing] a dwelling house . . . with intent to commit a felony therein,
to-wit: Rape, contrary to F.S. 810.01.” The information did not reference
a specific subsection of section 810.01, Florida Statutes (1967), to indicate
whether appellant was charged with burglary of a dwelling under
subsection (2), which was punishable by twenty years in prison, or charged
under subsection (1), which set forth an aggravated burglary offense
punishable by life imprisonment. See § 810.01, Fla. Stat. (1967).
Nevertheless, as discussed below, the language of the information plainly
charged appellant with the lesser burglary offense under subsection (2).

   At trial, the jury found appellant guilty as charged in the information.
The verdict form and judgment reflect that appellant was convicted of
“BREAKING AND ENTERING A DWELLING HOUSE WITH INTENT TO
COMMIT A FELONY, TO-WIT: RAPE.” The trial court sentenced appellant
to life in prison with the possibility of parole. Although appellant was
paroled at one point, he was later re-imprisoned.

   In 2017, appellant filed a motion to correct illegal sentence contending
that his life sentence exceeded the statutory maximum for his offense. His
claim was based on the foregoing documents and the applicable burglary
statute. The 1967 version of the statute provided:

          (1) Whoever breaks and enters a dwelling house, or any
      building or structure within the curtilage of a dwelling house
      though not forming a part thereof, with intent to commit a
      felony, or after having entered with such intent breaks
      such dwelling house or other building or structure
      aforesaid, if he be armed with a dangerous weapon, or have
      with him any nitroglycerine, dynamite, gunpowder or other
      high explosive at the time of breaking and entering, or if he
      arm himself with a dangerous weapon, or take into his
      possession any such high explosive within such building, or
      if he make an assault upon any person lawfully therein,
      shall be punished by imprisonment in the state prison for
      life, or for such term of years as may be determined by the
      court.

         (2) If the offender be not armed, nor arm himself with a
      dangerous weapon as aforesaid, nor have with him nor take
      into his possession any high explosive as aforesaid, nor make
      an assault upon any person lawfully in said building, he
      shall be punished by imprisonment in the state prison not
      exceeding twenty years.

§ 810.01, Fla. Stat. (1967) (emphases added), repealed by Ch. 74-383, §
66, Laws of Fla. See also Ch. 74-383, § 31, Laws of Fla. (reorganizing this
burglary statute into three subsections and moving it to section 810.02).
Because appellant was neither charged with nor convicted of any
aggravating circumstances during the burglary, such as being armed or
committing an assault, he reasoned that his conviction fell under
subsection (2), and that his prison sentence should have been capped at
twenty years.


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   The trial court denied appellant’s rule 3.800(a) motion based on the
State’s contention that he had been properly charged, convicted, and
sentenced under subsection (1). Noting the information alleged that
appellant committed the burglary with the intent to commit rape—and the
jury so found—the court determined that the intended rape constituted
the assault necessary to sustain a conviction and sentence under
subsection (1).

    However, as appellant points out on appeal, the trial court wrongly
equated the intent to commit a rape (or an assault) with the actual
commission of an assault. See Cochenet v. State, 

, 399 (Fla.
5th DCA 1984) (emphasis omitted) (“[T]he amended information charged
[defendant] entered the trailer with the intent to commit aggravated
assault; it did not allege that the assault actually occurred.”). Here,
appellant was charged, found guilty, and convicted of the lesser burglary
offense under subsection (2), that is, burglary of a dwelling with intent to
commit a felony. No aggravating circumstances were alleged or submitted
to the jury, as would be required to obtain a conviction under subsection
(1). See § 810.01(1), Fla. Stat. (1967) (setting forth the aggravating
circumstances for a burglary, including: the possession of a dangerous
weapon, the possession of a high explosive, and the assault of a person
lawfully in the dwelling).

   That the intended felony is a rape or assault does not alter the analysis
where it is not alleged that the burglar actually committed an assault. See
Averheart v. State, 

, 610 (Fla. 1st DCA 1978) (reversing life
sentence for burglary with intent to commit sexual battery, where
information “contained no allegations of the aggravating circumstances”);
see also 

(holding that defendant should have
been convicted of lesser burglary offense where information alleged that
he entered with only the “intent to commit aggravated assault”).
Accordingly, the record in this case demonstrates that appellant was
convicted of the lesser burglary offense under subsection (2). His life
sentence is illegal for exceeding the twenty-year statutory maximum. §
810.01(2), Fla. Stat. (1967).

   The arguments raised by the State on appeal are not persuasive as they
contradict the plain language of the statute. We reverse the denial of
appellant’s rule 3.800(a) motion and remand for the trial court to
resentence appellant to no more than twenty years in prison.

   Reversed and remanded.

MAY, CONNER and KLINGENSMITH, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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