Fjord v. State, 93-1344
| Decision Date | 16 March 1994 |
| Docket Number | No. 93-1344,93-1344 |
| Citation | 634 So.2d 714 |
| Parties | 19 Fla. L. Weekly D598 Tom L. FJORD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Debra Moses Stephens, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Sr. Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant was charged with sexual battery, in violation of section 794.011(2), Florida Statutes (1991), and two counts of lewd and lascivious assault upon a child less than 16 years of age, in violation of section 800.04, Florida Statutes (1991). We find his convictions for both the lesser-included offense of battery and one count of lewd and lascivious assault arising out of a single act to be mutually exclusive based on State v. Hightower, 509 So.2d 1078 (Fla.1987).
In Hightower, the supreme court held the crimes of sexual battery and lewd and lascivious assault to be mutually exclusive based on the statutory definition of each crime:
As now worded, section 800.04 [], contemplates 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 deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive.
Id. at 1079. Thus, a defendant cannot be convicted of both crimes if the charges arise out of the same act. Accord Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993).
The information in this case charges defendant with one count of sexual battery "by penetrating [the victim's] vagina with his fingers" and with a second count of lewd and lascivious assault "by touching and/or fondling [the victim's] vaginal area, without intent to commit sexual battery." A third count and conviction for lewd and lascivious assault by the defendant "putting [the victim's] foot on his genitalia and/or genital area," without the intent to commit sexual battery arises from a distinct and separate act and is not the subject of this appeal.
The child-victim in this case essentially testified that the defendant stuck his finger up her vagina. Therefore, the evidence in this case does not support two separate acts involving the vagina and the vaginal area. Accordingly, the convictions for both battery and lewd lascivious assault cannot stand since they arise from the same incident. Hightower.
In addition, the defendant here was convicted of battery, as a lesser-included offense of sexual battery. Sec. 784.03, Florida Statutes (1991). The jury was instructed that battery involved finding that the defendant "intentionally touched or struck [the victim] against her will" and that lewd and lascivious act consisted of the victim being under the age of 16 and the victim being "handled or fondled" in a lewd, lascivious or indecent manner. Double jeopardy prohibits multiple convictions for the same offense. See generally Carawan v. State, 515 So.2d 161 (Fla.1987). Dual punishments for...
To continue reading
Request your trial
-
Audano v. State
...We agree with the appellant that the convictions for both Count II and Count IV constitute double jeopardy. See Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994); Bailey v. State, 559 So.2d 604, 607 (Fla. 3d DCA 1990), review denied, 574 So.2d 139 (Fla. 1990). Count II charges that Audano p......
-
Jones v. State, 97-964
...officer with violence arising out of a single episode would violate the prohibition against double jeopardy. See, e.g., Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994) (double jeopardy prohibits multiple convictions for the same offense). A double jeopardy violation constitutes fundamenta......
-
D.D.M. v. State, 95-156
...State v. Hightower, 509 So.2d 1078, 1079 n. 4 (Fla.1987); Chaplin v. State, 622 So.2d 165 (Fla. 2d DCA 1993). Accord Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994); Walker v. State, 622 So.2d 630 (Fla. 3d DCA 1993); Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993). Likewise, the crime......
-
Tannihill v. State, 4D02-644.
...lascivious battery based on the same act of oral penetration or union violate his right against double jeopardy. See Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994). Contrary to the state's assertions that the issue has been waived, a violation of double jeopardy is a fundamental error wh......