Binns v. State
| Decision Date | 23 April 2008 |
| Docket Number | No. 4D07-181.,4D07-181. |
| Citation | 979 So.2d 439 |
| Parties | Leighton BINNS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Leighton Binns, South Bay, pro se.
Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent.
Petitioner claims ineffective assistance of appellate counsel in failing to raise as fundamental error a violation of double jeopardy in his multiple convictions for lewd and lascivious conduct. Because two of the charges occurred during a single episode, we grant the petition in part and direct the dismissal of one count of lewd and lascivious molestation. In all other respects, we deny the petition.
Binns was charged in five counts for sexual battery and lewd and lascivious acts against his daughter which occurred between October 10, 1998 and November 30, 1999. Count one alleged sexual battery; count two alleged a lewd and lascivious act of touching or rubbing the victim's vaginal area; count three alleged a lewd and lascivious act by touching the victim's breast; count four alleged the lewd and lascivious act of touching the victim's breast with defendant's mouth; and count five alleged touching the victim's buttocks in a lewd and lascivious manner.
The charges arose out of two main incidents and casual touching throughout the time period alleged in the information. In the first incident, the victim testified that Binns penetrated her vagina with his penis. During this incident he also touched her breast. In the second incident, he also penetrated her with his penis, and during this incident he placed his mouth and hands on her breasts. As he did not use a condom during this incident, he wiped her off with a cloth after it was over. The victim also testified that he would frequently grab her breasts and buttocks in a sexual manner during the time she lived with him.
Binns was convicted of all charges and sentenced to life in prison for the sexual battery charge and concurrent fifteen-year terms on each of the lewd and lascivious act counts. No double jeopardy objection to his convictions and sentences was registered at trial, and appellate counsel did not raise the issue on appeal. He brought this petition for habeas corpus alleging ineffective assistance for failure to raise as fundamental error a double jeopardy violation.
Claims for ineffective assistance of appellate counsel are judged on the same criteria as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our supreme court has explained:
[W]hen evaluating a claim for ineffective assistance of appellate counsel, this Court must determine: (1) whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance, and (2) whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo. State v. Florida, 894 So.2d 941, 945 (Fla.2005). The issue could have been raised by appellate counsel for the first time on appeal despite the lack of an objection on this ground below. Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003) (). Therefore, it may constitute ineffective assistance of counsel, depending upon the state of the record.
As explained by the supreme court in State v. Paul, 934 So.2d 1167, 1171-72 (Fla.2006), "The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature `intended to authorize separate punishments for the two...
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...jeopardy. The parties do not dispute the facts underlying this purely legal issue. Thus, our review is de novo. Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008). "The federal and Florida constitutions prohibit being twice placed in jeopardy for the same offense." Hall v. State, 823 So......
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