Opinion
No. VV-278.
May 21, 1982.
Appeal from the Circuit Court for Madison County, Royce Agner, J.
Michael E. Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
We affirm all points on appeal. As to Point IV, challenging the court's imposition of a separate sentence for sexual battery as a lesser offense to burglary while committing an assault, we conclude, after examining the allegations of Count II, relating to the burglary offense, that sexual battery, not alleged in Count II to be the means by which the assault was committed, could not be a lesser offense to burglary. Accordingly, the court's imposition of the separate sentence for sexual battery was not barred by the provisions of Section 775.021(4), Florida Statutes (1977). Cf. Borges v. State, 415 So.2d 1265 (Fla. 1982).
ERVIN, BOOTH and THOMPSON, JJ., concur.