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
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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, 445 So. 2d 398, 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, 358 So. 2d 609, 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 Cochenet, 445 So. 2d at 399 (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.