Drawdy v. State

• Decision Date: 05 September 2012
• Docket Number: No. 2D10–3347.,2D10–3347.
• Citation: 98 So.3d 165
• Parties: Eric J. DRAWDY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

98 So.3d 165

Eric J. DRAWDY, Appellant,

v.STATE of Florida, Appellee.

No. 2D10–3347.

District Court of Appeal of Florida, Second District.

Sept. 5, 2012.

James Marion Moorman, Public Defender, and Stephen M. Grogoza, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Eric Drawdy appeals his convictions and sentences for sexual battery of a child and for lewd or lascivious molestation. See§§ 794.011(1)(h), (8)(b); 800.04(5)(a), Fla. Stat. (2006). Double jeopardy bars conviction for both offenses committed in a single criminal episode. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Accordingly, the law compels us to reverse in part.

The following statutory provisions apply:

§ 794.011 Sexual battery.—

(1)(h) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object

....

....

(8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:

....

(b) Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

....

§ 800.04(5) Lewd or lascivious molestation.—

(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

Relevant Background

Mr. Drawdy raped his young teenage stepdaughter. While doing so, he touched her breasts. A jury convicted Mr. Drawdy of sexual battery. The jury also convicted him of lewd or lascivious molestation for touching the breasts. The trial court sentenced him to thirty years in prison for the sexual battery, followed by five years of probation for the molestation. Mr. Drawdy argues that his convictions violate double jeopardy and constitute fundamental error. See Avila v. State, 86 So.3d 511, 513 n. 2 (Fla. 2d DCA 2012) (“[A] violation of double jeopardy constitutes fundamental error that may be raised for the first time on appeal.” (citing Gisi v. State, 848 So.2d 1278, 1281 (Fla. 2d DCA 2003); Johnson v. State, 747 So.2d 1027, 1028 (Fla. 2d DCA 1999))).

The Fifth Amendment to the United States Constitution and article I, section 9, of the Florida Constitution “prohibit [ ] subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense.” Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009). The double jeopardy guarantee restrains courts and prosecutors. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The legislature remains free to define crimes and fix punishments; “but once the legislature has acted courts may not impose more than one punishment for the same offense....” Id. at 165, 97 S.Ct. 2221. Of course, double jeopardy does not prohibit multiple punishments for different offenses arising from the same criminal episode “as long as the Legislature intends to authorize separate punishments.” Valdes, 3 So.3d at 1069. “[T]he role of the constitutional guarantee against double jeopardy is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments arising from a single criminal act.” Hayes v. State, 803 So.2d 695, 699 (Fla.2001) (quoting Brown, 432 U.S. at 165, 97 S.Ct. 2221);Claps v. State, 971 So.2d 131, 133 (Fla. 2d DCA 2007).

Double jeopardy poses no concern where separate convictions arise from separate criminal episodes. See Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010) (“Multiple punishments and convictions may rest on offenses occurring within differing criminal episodes.”). Typically, criminal acts occur in separate criminal episodes where there are multiple victims, multiple locations, a temporal break between acts, or where the perpetrator forms a new criminal intent between acts. Hayes, 803 So.2d at 700–01 (citing Hearn v. State, 55 So.2d 559, 560–61 (Fla.1951)); Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (citing Staley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002)). Here, we have a single victim, a single location, and no temporal break between the sexual battery and the lewd or lascivious molestation. Recall that the acts occurred simultaneously. Under these circumstances, we face a single criminal episode.

Blockburger Different Elements Test

Where multiple convictions arise from a single episode, a court must determine whether the offenses constitute single or distinct acts. Blockburger aids in that determination. “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180. “[T]he Florida sexual battery statutes are particularly susceptible to the distinct acts exception because the statutes ‘may be violated in multiple, alternative ways....' ” Partch, 43 So.3d at 761 (quoting Saavedra v. State, 576 So.2d 953, 956–57 (Fla. 1st DCA 1991)).

Multiple Sexual Penetration or Union Crimes

Separate convictions for more than one type of sexual battery described in section 794.011 in a single episode do not violate double jeopardy; each battery is of a separate character and type that requires a different element of proof. Saavedra, 576 So.2d at 957 (“Sexual batteryof a separate character and type requiring different elements of proof warrant multiple punishments.”); accord Schwenn v. State, 898 So.2d 1130, 1132 (Fla. 4th DCA 2005). See, e.g., Duke v. State, 444 So.2d 492, 493–94 (Fla. 2d DCA), aff'd,456 So.2d 893 (Fla.1984) (vaginal penetration followed by anal penetration a moment later); Grunzel v. State, 484 So.2d 97 (Fla. 1st DCA 1986) (cunnilingus followed by vaginal intercourse seconds later); Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980) (oral sex followed by rape). In each of these cases, the distinct acts were committed sequentially. See Schwenn, 898 So.2d at 1132 (distinguishing Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001), where, because defendant fondled victim's breast and vagina at practically the same time, he did not have time to reflect and form new criminal intent).

Although appellate courts affirmed separate convictions for more than one type of sexual battery in a single episode, they did not do the same for section 800.04(4) lewd or lascivious batteries, despite the fact that the prohibited acts of oral, anal, or vaginal penetration or union were the same as those in the sexual battery statute. See, e.g., Capron v. State, 948 So.2d 954, 959 (Fla. 5th DCA 2007) (two lewd or lascivious acts of kissing victim's vagina and touching genital area with penis in one episode not sufficiently discrete to deem separate offenses). To this point, the evolving judicial interpretation of sections 794.011 and 800.04 precluded conviction for both sexual battery and lewd or lascivious molestation in the same episode. State v. Meshell, 2 So.3d 132, 133 (Fla.2009), changed the landscape, extending the exception for distinct acts of sexual battery to the different types of lewd or lascivious battery identified in section 800.04(4) because the elements were the same. Meshell upheld dual convictions for lewd or lascivious battery—by penetration or union with the victim's vagina and by penetration or union with the victim's mouth in the same episode—“[b]ecause the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1....” Id. at 136;see also, e.g., Schuster v. State, 17 So.3d 304 (Fla. 4th DCA 2009) (upholding four convictions for serial, distinct lewd and lascivious batteries in same episode); State v. Gonzalez, 24 So.3d 595 (Fla. 5th DCA 2009) (approving dual convictions for lewd and lascivious battery in single episode). Meshell, of course, involved section 800.04(4), and its holding did not extend to section 800.04(5), the statute under which the State charged Mr. Drawdy. See Meshell, 2 So.3d at 134 (specifically limiting its double jeopardy review to section 800.04(4)); Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009) (observing that Meshell limited its holding to section 800.04(4)).

Sexual Penetration or Union Crimes with Lewd or Lascivious Molestation

Historically, sexual battery subsumed acts of lewd or lascivious molestation in the same episode. We have held that double jeopardy precluded convictions for both. See Johnson v. State, 913 So.2d 1291 (Fla. 2d DCA 2005) (sexual battery and lewd or lascivious molestation in one criminal episode are one offense of sexual battery). Similarly, we have held that double jeopardy precluded conviction for a lewd or lascivious molestation in the same episode as a lewd or lascivious battery. See, e.g., Johnson, 913 So.2d at 1291–92 (double jeopardy prohibited convictions for both sexual battery and lewd and lascivious molestation during same episode); Gisi v. State, 909 So.2d 531 (Fla. 2d DCA 2005) (convictions for lewd and lascivious acts in same episodes as sexual intercourse with a child violated double jeopardy). Some courts reasoned that the defendant could not form a new criminal intent for acts involving simultaneous offenses. See, e.g., Leyva v. State, 925 So.2d 393 (Fla. 4th DCA 2006) (holding attempted sexual battery and lewd and lascivious conduct of...