Cabanela v. State, 3D03-2672.

• Decision Date: 25 March 2004
• Docket Number: No. 3D03-2672.,3D03-2672.
• Citation: 871 So.2d 279
• Parties: Jesus CABANELA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

871 So.2d 279

Jesus CABANELA, Appellant, v. The STATE of Florida, Appellee.

No. 3D03-2672.

District Court of Appeal of Florida, Third District.

March 25, 2004.

Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and GREEN and SHEPHERD, JJ.

PER CURIAM.

Appellant, Jesus Cabanela, appeals the denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, wherein he challenges his convictions and sentences for four counts of lewd assault upon a child under the age of sixteen on the grounds that these sentences violated his protection against double jeopardy, where all of these charges arose out of the same criminal episode. We find merit to his claim and reverse and remand with instructions that three of the convictions and sentences be vacated.

Cabanela was charged by amended information, under section 800.04, Florida Statutes (1995), with four counts of lewd assault upon a child under the age of sixteen on August 1, 1996 as follows: Count I—sexual battery by placing his mouth in union with the vagina of the victim and/or placing his tongue in union with the vagina of the victim; Count II—fondling and/or handling and/or touching and/or rubbing the vagina; Count III—fondling and/or handling and/or touching and/or rubbing the breasts of the victim; Count IV— placing his tongue and/or lips in union with the breast of the victim and/or licking the breast of the victim. At trial, the State's evidence revealed that Cabanela had been a friend of the young victim's parents and had been permitted to live in a trailer behind their house. On August 1, 1996, Cabanela visited the victim's home and found the twelve year old victim alone in her mother's bedroom watching television. At the time, the victim was sitting on the bed wearing shorts and a t-shirt, with a sports bra or tank top under the t-shirt.

The victim testified that Cabanela sat down on the bed next to her and started feeling on her. She stated that he first started to rub her thigh and then feel her breasts. He then laid her down on the bed, pulled up her shirt and sports bra, and started licking her breasts and kissing her neck. The victim stated that she pulled her shirt down and Cabanela started feeling her vagina over her clothes. He then pulled her shorts to the side and started licking her vagina. The victim testified that she then pushed him off and went into her aunt's bedroom in the house and locked the door. She agreed, on cross-examination, that all of this touching lasted a few minutes.

The jury convicted Cabanela on all four counts of lewd assault and he was sentenced to the maximum 27 years, 9 months in state prison pursuant to the 1995 sentencing guidelines. On his direct appeal to this court, he raised several issues, none of which involved a double jeopardy challenge to his convictions and sentences. We affirmed his convictions, but remanded for resentencing because the State properly conceded error in that this cause was governed by the 1994 sentencing guidelines, rather than the 1995 sentencing guidelines by which he was sentenced. Cabanela v. State, 785 So.2d 1263 (Fla. 3d DCA 2001).

The trial court resentenced Cabanela to 11.6 years in state prison based upon a scoresheet that reflected one of the four counts of lewd assault as the primary offense and the other three counts of lewd assault as additional offenses. The scoresheet scored a total of 72 points for victim injury-sexual contact, 18 for each of the four convictions.

Cabanela filed a pro se notice of appeal of his resentence, and we appointed the Office of the Public Defender to represent him on this appeal. Cabanela argued that his multiple sentences for four convictions violated double jeopardy where they all arose from one criminal episode. We affirmed his sentence without prejudice to his right to seek post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Cabanela v. State, 837 So.2d 609 (Fla. 3d DCA 2003).

Thereafter, Cabanela moved for Rule 3.850 relief in the trial court, arguing that he committed one ongoing sexual assault against the victim on August 1, 1996. Thus, he argued, the multiple convictions and sentences imposed against him violated double jeopardy and his trial counsel was ineffective for failing to move for judgment of acquittal on this ground so that the error could be preserved for appellate review. The trial court denied this motion as well as his motion for rehearing. This appeal followed.

The double jeopardy provision of the U.S. Constitution protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). See also Scalf v. State, 573 So.2d 202, 203 (Fla. 1st DCA 1991) (same). Cabanela therefore argues that his multiple convictions and sentences for lewd assault upon a child pursuant to section 800.04, Florida Statutes (1995), were violative of double jeopardy where they were committed in a single criminal episode. We agree.

The Fourth District Court of Appeal initially addressed this issue in Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001). There, the court was confronted with the issue of whether the unlawful touching of the young victim's breasts and the fondling of her vagina in a single episode could sustain two convictions for lewd assault without implicating double jeopardy. Id. at 1094. The court held that only one conviction could be sustained, stating that:

In determining what qualifies as a distinct act for purposes of deciding whether multiple acts can be charged in a single count, the spatial and temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.

Id. at 1095. Because the record failed to show that the defendant had time to pause, reflect, and form a new criminal intent between each act, the court concluded that to deem the acts separate and distinct would violate the defendant's right to be free from double jeopardy. Id.

Following the Eaddy decision, the Second District, in Morman v. State, 811 So.2d 714 (Fla. 2d DCA 2002), similarly found a double jeopardy violation for convictions arising out of two separate episodes from which the State charged a total of four offenses. Id. at 715. There, the victim testified that the first occurrence took place when she was lying on a couch and the defendant touched her bottom and her breasts. Id. The second occurrence took place the next day when the defendant sat her on a counter and rubbed his clothed penis against her vagina as he squeezed her chest. Id. The State charged the defendant with a total of four different counts based upon its assertion that the touching of each separate body part constituted a separate offense. Id.

The Second District began its analysis by noting that our supreme court, in State v. Hightower, 509 So.2d 1078 (Fla.1987), had observed that section 800.04 as then worded¹ contemplated "that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is...