Bass v. State, 78-2187
| Decision Date | 12 March 1980 |
| Docket Number | No. 78-2187,78-2187 |
| Parties | Robert BASS, a/k/a Charles R. McConaha, Appellant, v. STATE of Florida, Appellee. /T4-240. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Gary S. Israel, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant was convicted in the Circuit Court of Brevard County on two counts of sexual battery by coercing the victim with threats of more serious injury, and one count of kidnapping.
The first question which we shall address is whether the trial court erred in sentencing Appellant separately for two counts of sexual battery. The issue on which this question turns is whether this activity was a single criminal transaction, or episode.
The victim was employed delivering newspapers on an early morning route. Deliveries were made from her automobile. At about 4:45 a. m. she stopped to open a vending machine; as she reached the machine she found she had the wrong key. She returned to her car as defendant stopped his automobile diagonally in front of her car. He threatened her, forced her into the car with him and drove off in spite of her protests that her baby was in the car with the door open and the engine running.
While driving to a more isolated spot defendant required the victim to remove her clothes and to perform oral sex. After reaching his destination, he then raped her. Although other acts took place and there were other counts, no convictions as to those counts resulted. Further recitation of the sordid facts would serve no purpose in consideration of the merits of this appeal.
Appellant contends that the activity occurring while defendant was driving and after coming to a stop occurred during one continuous course of events. He contends that Section 775.021, Florida Statutes 1 requires there to be a violation of two separate statutes before he can be held guilty of separate offenses. Here defendant was charged under a single statute, Section 794.011(4)(b).
Williams v. State, 349 So.2d 800, (Fla. 2d DCA 1977), involved possession of a controlled substance with intent to deliver, and delivery of a controlled substance. The court held that Count II would be set aside because both crimes were a facet of the same transaction. See also Orange v. State, 334 So.2d 277 (Fla. 3d DCA 1976).
In the Williams and Orange cases, supra, the acts were committed together, there was no separation in time. Each crime was part and parcel of the other. In the case before this court, defendant forced the victim to commit one act upon him while driving his car. He then forced her to commit another act after reaching his destination which, while sexual battery and falling within the same statute, was of a separate character and type. Had defendant released his victim after commission of the first episode there is no doubt...
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