This opinion is subject to formal revision before publication in the advance sheets of
The appellant, Christopher Terez Childs, was indicted for two counts of burglary in the first degree, a violation of § 13A-7-5, Ala. Code 1975; one count of robbery in the first degree, a violation of § 13A-8-41, Ala. Code 1975; and one count of rape in the first degree, a violation of § 13A-6-61, Ala. Code 1975. Following a jury trial, Childs was convicted of two counts of first-degree burglary and one count of first-degree robbery. The circuit court sentenced Childs to life imprisonment for each conviction and ordered the sentences to run consecutively. Childs was ordered to pay $50 to the crime victims compensation fund for each conviction and court costs.
Childs does not challenge the sufficiency of the evidence on appeal. Therefore, a brief recitation of the facts is all that is necessary in this case. During the early morning hours of January 1, 2014, four men forcibly entered the mobile home occupied by J.S., his sister A.B.S., her husband L.T.Z., and A.B.S. and L.T.Z.'s child by kicking open the door.
After both sides had rested and the circuit court had instructed the jury on the applicable principles of law, the jury found Childs guilty of two counts of burglary in the first degree and one count of robbery in the first degree. The jury could not reach a verdict on the rape charge, and the circuit court declared a mistrial regarding that charge. This appeal followed.
On appeal, Childs contends that one of his two first-degree-burglary convictions violates the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. The State concedes that Childs's second conviction for burglary in the first degree violates double-jeopardy principles. We agree.
The record indicates that Childs was indicted for two counts of first-degree burglary — one count of burglary alleged that Childs was armed with a deadly weapon and the other count of burglary alleged that Childs caused physical injury during the incident. Childs was convicted of both counts of burglary even though it appears that the counts were intended as alternative methods of proving the same offense of burglary.
The Alabama Supreme Court has held that "where there are two different methods of proving the offense charged in one statute, they [do not] constitute separate offenses."
574 So. 2d at 929-30.
Section 13A-7-5, Ala. Code 1975, defines first-degree burglary as follows:
In this case, Childs was convicted of two counts of first-degree burglary under the two subsections of § 13A-7-5 listed above, and he was sentenced to consecutive sentences as a result of those convictions. Because his conduct did not constitute two separate offenses, we hold that punishing Childs twice for the same offense — burglary in the first degree — violated his double-jeopardy rights. Accordingly, this case is remanded for the circuit court to vacate one of Childs's convictions for burglary in the first degree. Due return shall be made to this Court within 42 days of the date of this opinion.
REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.