Bergen v. State, No. 88-02611

CourtCourt of Appeal of Florida (US)
Writing for the CourtLEHAN; DANAHY, A.C.J., and FRANK
Citation14 Fla. L. Weekly 2622,552 So.2d 262
Parties14 Fla. L. Weekly 2622 Thor BERGEN, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 88-02611
Decision Date08 November 1989

Page 262

552 So.2d 262
14 Fla. L. Weekly 2622
Thor BERGEN, Appellant,
v.
STATE of Florida, Appellee.
No. 88-02611.
District Court of Appeal of Florida,
Second District.
Nov. 8, 1989.

Page 263

James Marion Moorman, Public Defender, and Megan Olson, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

LEHAN, Judge.

Defendant appeals from his convictions for five counts of a lewd and lascivious act committed in the presence of a child in violation of section 800.04, Florida Statutes (1987). Section 800.04(3) provides that one is guilty of a felony of the second degree who "knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years." We affirm.

Defendant's first contention is that the trial court erred in denying his motion for a judgment of acquittal as to four of the five counts because the five counts all arose from his having masturbated in the presence of five children. He argues, inter alia, that there was but a single act committed by him at one time at one place. He cites Hearn v. State, 55 So.2d 559 (Fla.1951) (theft of eleven cattle belonging to different owners constituted one larceny). Defendant's argument is persuasive, but we are persuaded to affirm by the recognition in Judge Booth's partially concurring and partially dissenting opinion in Lifka v. State, 530 So.2d 371, 377 (Fla. 1st DCA 1988), that "section 800.04, Florida Statutes, was specifically designed to protect children under the age of sixteen." Thus, we agree with the argument of the state that five different crimes were committed. See also McClain v. State, 383 So.2d 1146 (Fla. 4th DCA), rev. denied, 392 So.2d 1376 (1980) (pointing a knife at two persons constitutes two different assaults).

Defendant's second contention is that the trial court erred in refusing defendant's request for a jury instruction on voluntary intoxication which is a defense to a specific intent crime. However, we agree with the trial court that the statutory language which we have quoted above does not proscribe a specific intent crime. It does not "prohibit an act when accompanied by some intent other than the intent to do the act itself or the intent (or presumed intent) to cause the natural and necessary consequences of the act." Linehan v. State, 442 So.2d 244, 247 (Fla. 2d DCA 1983), aff'd, 476 So.2d 1262 (1985). Nor does the statute require "a...

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4 practice notes
  • Belcher v. State, No. 92-1653
    • United States
    • Court of Appeal of Florida (US)
    • October 21, 1994
    ...general intent crimes and the affirmative defense of voluntary intoxication applies only to specific intent crimes. See Bergen v. State, 552 So.2d 262 (Fla. 2nd DCA 1989), disapproved of on other grounds, State v. Hernandez, 596 So.2d 671 (Fla.1992); see also Harris v. State, 418 So.2d 416 ......
  • Hernandez v. State, No. 89-2144
    • United States
    • Court of Appeal of Florida (US)
    • February 20, 1991
    ...limiting the number of offenses that could be charged to one count for each separate incident. (emphasis supplied) Cf. Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989). Thus, it is entirely possible for one individual to receive a charge of lewd assault and a charge of lewd act for one lew......
  • Roberts v. State, No. 91-02998
    • United States
    • Court of Appeal of Florida (US)
    • June 25, 1993
    ...convictions. Hernandez, 596 So.2d at 672. The supreme court specifically disapproved of this court's opinion in Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989) which held that the state correctly charged the defendant with five counts of masturbation in the presence of five Accordingly, w......
  • State v. Hernandez, No. 77834
    • United States
    • United States State Supreme Court of Florida
    • April 2, 1992
    ...McDONALD, Justice. We review Hernandez v. State, 575 So.2d 1321 (Fla. 4th DCA 1991), because it conflicts with Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. The issue we address is: When an individual commits a single act of lewd ......
4 cases
  • Belcher v. State, No. 92-1653
    • United States
    • Court of Appeal of Florida (US)
    • October 21, 1994
    ...general intent crimes and the affirmative defense of voluntary intoxication applies only to specific intent crimes. See Bergen v. State, 552 So.2d 262 (Fla. 2nd DCA 1989), disapproved of on other grounds, State v. Hernandez, 596 So.2d 671 (Fla.1992); see also Harris v. State, 418 So.2d 416 ......
  • Hernandez v. State, No. 89-2144
    • United States
    • Court of Appeal of Florida (US)
    • February 20, 1991
    ...limiting the number of offenses that could be charged to one count for each separate incident. (emphasis supplied) Cf. Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989). Thus, it is entirely possible for one individual to receive a charge of lewd assault and a charge of lewd act for one lew......
  • Roberts v. State, No. 91-02998
    • United States
    • Court of Appeal of Florida (US)
    • June 25, 1993
    ...convictions. Hernandez, 596 So.2d at 672. The supreme court specifically disapproved of this court's opinion in Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989) which held that the state correctly charged the defendant with five counts of masturbation in the presence of five Accordingly, w......
  • State v. Hernandez, No. 77834
    • United States
    • United States State Supreme Court of Florida
    • April 2, 1992
    ...McDONALD, Justice. We review Hernandez v. State, 575 So.2d 1321 (Fla. 4th DCA 1991), because it conflicts with Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. The issue we address is: When an individual commits a single act of lewd ......

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