State v. Drayton , 339 So. 2d 193 ( 1976 )

PER CURIAM.

This case is here on petition for writ of certiorari to the District Court of Appeal, Second District. Article V, Section 3(b)(3), Florida Constitution.

We issued our order allowing certiorari and dispensing with oral argument because of a conflict between the Second District Court’s opinion in this case, reported at 320 So.2d 23, and principles enunciated in Estevez v. State, 313 So.2d 692 (Fla.1975).

Respondent Drayton was convicted of two crimes: (1) assault with intent to commit rape, and (2) breaking and entering a dwelling house with intent to commit a felony, to-wit: rape and committing an assault upon a person lawfully therein. The trial court sentenced respondent to a 5-year prison term on the first crime and to a term of 25 years for the second crime. Drayton was given credit for time served, and the sentences were made concurrent.

On September 17,1975, the District Court of Appeal, Second District, affirmed the judgments of guilt but remanded the sentencing to the trial court: Finding that assault was an essential element of both charges and was a facet of the same criminal transaction, the District Court vacated the sentence imposed for the assault conviction on the authority of Trousdale v. State, 287 So.2d 721 (Fla. 2d DCA 1974).

Since entering our earlier order in the case at bar, this Court has filed State v. Ray, 331 So.2d 316 (Fla.1976). In Ray, we approved the imposition of separate sentences for attempted sexual battery and breaking and entering a dwelling house with intent to commit a felony, to-wit: sexual battery, where both crimes arose from the same occasion. The Ray case squarely controls the result in the instant petition.

Accordingly, after reading the briefs submitted by the parties, we have determined that the petition for writ of certiorari should be granted and the decision of the District Court of Appeal, Second District, quashed with directions to remand for reinstatement of the original sentences rendered by the Circuit Court in and for Pinel-las County.

ROBERTS, Acting C. J., and ADKINS, SUNDBERG and HATCHETT, JJ., concur. BOYD, J., dissents.