Deoclecio Sampaio v. State of Florida
CourtDistrict Court of Appeal of Florida
Date FiledJune 10, 2020
Docket1D19-1508
StatusPublished
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Full Opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-1508
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DEOCLECIO SAMPAIO,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
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Petition Alleging Ineffective Assistance of Appellate Counsel—
Original Jurisdiction.
June 10, 2020
B.L. THOMAS, J.
In a timely petition filed pursuant to Florida Rule of Appellate
Procedure 9.141(d), Deoclecio Sampaio alleges that his appellate
counsel was ineffective for failing to argue on direct appeal that
the amended information was defective. We deny the petition on
the merits.
Petitioner was charged by amended information with home
invasion robbery with a firearm and grand theft of a firearm. He
pleaded not guilty, and the jury found him guilty of the lesser
included offense of robbery and guilty of grand theft as charged.
The jury was instructed on lesser included offenses, including
robbery, and was instructed as to both the elements of home
invasion robbery and simple robbery. Petitioner’s judgment was
affirmed on direct appeal.
Petitioner now argues that appellate counsel was ineffective
for failing to argue on direct appeal that the amended information
was defective in that it failed to allege the elements necessary to
prove simple robbery and that it failed to allege any facts
supporting a conviction for simple robbery.
Petitioner argues that his conviction for robbery cannot stand
because the amended information failed to specifically reference
section 812.13, Florida Statutes, the simple robbery statute, or to
articulate the elements of simple robbery. The elements of robbery,
as defined by section 812.13, Florida Statutes, are wholly
encompassed within the elements of home invasion robbery, as
defined by section 812.135, Florida Statutes. Robbery is a
necessarily lesser included offense of home invasion robbery. See
Fla. Std. Jury Instr. (Crim.) 15.3.
Further, home invasion robbery requires the commission of a
robbery. The amended information charged Petitioner with home
invasion robbery in violation of section 812.135(1) and (2)(a) and
specifically alleged that he did commit a robbery. Thus, Petitioner
was on notice that he was being charged with robbery.
A defendant may be convicted of any lesser-included offense
charged in the indictment or information. See Fla. R. Crim. P.
3.510(b). “Necessarily lesser included offenses are those offenses in
which the statutory elements of the lesser included offense are
always subsumed within those of the charged offense.” Slack v.
State, 30 So. 3d 684, 687 (Fla. 1st DCA 2010) (quoting Carle v.
State, 983 So. 2d 693, 695 (Fla. 1st DCA 2008)). Robbery is
subsumed within, and therefore a necessarily lesser included
offense to, home invasion robbery. See Brock v. State, 911 So. 2d
271, 273 (Fla. 5th DCA 2005); Brown v. State, 269 So. 3d 48 n.2
(Fla. 4th DCA 2018). Because the elements of simple robbery are
always subsumed within the offense of home invasion robbery,
Petitioner’s conviction for simple robbery is supported by the
allegations of home invasion robbery in the information.
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Accordingly, as the issue was without merit, appellate counsel
was not deficient in failing to raise it on appeal. See Rutherford v.
Moore, 774 So. 2d 637 (Fla. 2000). The petition is denied.
LEWIS and NORDBY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Deoclecio Sampaio, pro se, Petitioner.
Ashley Moody, Attorney General, Tallahassee, for Respondent.
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