George v. State, 85-964
| Decision Date | 02 May 1986 |
| Docket Number | No. 85-964,85-964 |
| Citation | 11 Fla. L. Weekly 1040,488 So.2d 589 |
| Parties | 11 Fla. L. Weekly 1040 Elishas GEORGE, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Joseph Eugene Perrin, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant appeals his judgment and sentence for burglary and two counts of sexual battery in violation of sections 794.011(4) and 794.011(5), Florida Statutes (1983). Appellant first contends that the trial court erred in denying his motion for judgment of acquittal on the charge of sexual battery by threat of force or violence likely to cause serious personal injury in violation of section 794.011(4). He also argues that it was error for the trial court to convict and sentence him for violations of both sections 794.011(4) and 794.011(5) when only one penetration occurred.
We find no merit in appellant's first issue on appeal. Appellant was charged with sexual battery by force or violence likely to cause serious personal injury in violation of section 794.011(4) and, also, sexual battery by force or violence not likely to cause serious personal injury in violation of section 794.011(5). We find that the state produced sufficient evidence to prove that appellant used force likely to cause serious personal injury in the commission of the rape. Therefore, the trial court was correct in denying appellant's motion for judgment of acquittal on the sexual battery by force and violence likely to cause serious personal injury charge.
Appellant's conviction and sentence for sexual battery in violation of section 794.011(5), however, cannot be sustained. It is clear that only one penetration occurred, and it was accomplished by appellant's acts and threats of violence likely to cause serious personal injury. In Houser v. State, 474 So.2d 1193 (Fla.1985), our supreme court held, in regard to charges of vehicular homicide and DWI manslaughter, that there could be only one homicide conviction and sentence imposed for a single death. Quoting from Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) which, in turn, was construing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), our Supreme Court wrote:
"[t]he assumption underlying the Blockburger rule is that [the legislative body] ordinarily does not intend to punish the same offense under two different statutes." Ball v. United States, [---] U.S. [----], 105 S.Ct. 1668, 1672, 84 L.Ed.2d 740 (198...
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...54 Cal.2d 57, 59, 4 Cal.Rptr. 158, 160, 351 P.2d 326, 328 (1960); People v. Craig, 17 Cal.2d 453, 110 P.2d 403 (1941); George v. State, 488 So.2d 589 (Fla.App.1986); State v. Ponte-Alfonzo, 348 N.W.2d 734, 736 (Minn.1984); State v. Smith, 299 N.W.2d 504, 506 Finally, in construing a statute......
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...The district court found no multiple-punishments problem in this sentencing scheme, but noted possible conflict with George v. State, 488 So.2d 589 (Fla. 2d DCA 1986). However, the district court proceeded to distinguish George from the instant We do not address whether conflict with George......
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