Hunsicker v. State, No. 5D03-373

• Decision Date: 20 August 2004
• Docket Number: No. 5D03-527., No. 5D03-373
• Citation: 881 So.2d 1166
• Parties: Bruce HUNSICKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

881 So.2d 1166

Bruce HUNSICKER, Appellant, v. STATE of Florida, Appellee.

Nos. 5D03-373, 5D03-527.

District Court of Appeal of Florida, Fifth District.

August 20, 2004.

Rehearing Denied September 22, 2004.

James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, C.J.

Bruce Hunsicker was found guilty of three counts of sexual battery, two counts of lewd or lascivious molestation, one count of lewd or lascivious exhibition, one count of lewd or lascivious conduct, and one count of burglary of a dwelling with an assault or battery. He appeals his judgment and sentences raising several issues. Although we conclude that we must affirm as to each issue, we write to discuss two: 1) whether the convictions for four counts of lewd or lascivious acts violate double jeopardy principles; and 2) whether the sentences imposed on these four counts as both a habitual offender (HO) and prison releasee reoffender (PRR) are improper.¹

A detailed discussion of the facts is not necessary to resolve the two issues we address. However, a discussion of the sentences Hunsicker received after the jury found him guilty is a necessary prelude to our legal analysis, and so we will begin there and then proceed to discuss each issue in the order presented.

The Sentences

For three acts of sexual battery, burglary of a dwelling and four lewd or lascivious acts committed on his ten-year-old victim during the late evening hours of February 2, 2001, Hunsicker, who the trial court found qualified as a HO and PRR, was sentenced as follows:

The sentences imposed for the sexual battery charges alleged in counts one, two and three in violation of section 794.011(2), Florida Statutes (2001), were life imprisonment concurrently for each count.

The sentence imposed for the burglary charge alleged in count four in violation of section 810.02(2)(a), Florida Statutes (2001), was life imprisonment consecutive to counts one, two and three with HO and PRR classification.

The sentence imposed for lewd or lascivious molestation alleged in count five in violation of section 800.04(5), Florida Statutes (2001), was life imprisonment consecutive to count four with HO and PRR classification.

The sentence imposed for lewd or lascivious molestation alleged in count six in violation of section 800.04(5), Florida Statutes (2001), was life imprisonment consecutive to count five with HO and PRR classification.

The sentence imposed for lewd or lascivious exhibition alleged in count seven in violation of section 800.04(7), Florida Statutes (2001), was thirty years imprisonment consecutive to count six with HO and PRR classification.

The sentence imposed for lewd or lascivious conduct alleged in count eight in violation of section 800.04(6), Florida Statutes (2001), was thirty years imprisonment consecutive to count seven with HO and PRR classification.

As to the counts of lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition, Hunsicker contends that his convictions violate double jeopardy principles because each arose out of a single criminal episode. Therefore, he argues that he may be convicted of only one lewd or lascivious offense. Hunsicker also contends that because he was sentenced as both a HO and PRR for these offenses, his sentences are illegal.

At no time during the sentencing hearing did Hunsicker object that his sentences violated double jeopardy principles or that his dual sentence as a HO and PRR were improper. Moreoever, Hunsicker did not avail himself of the procedure in rule 3.800(b), Florida Rules of Criminal Procedure, to raise these alleged errors before the trial court. Hence, the State argues that Hunsicker did not properly preserve either issue for review. We will first address the double jeopardy issue.

Double Jeopardy

We reject the State's preservation of error argument. This court and others have consistently held that violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal.² See State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004); Tannihill v. State, 848 So.2d 442 (Fla. 4th DCA 2003); Haynes v. State, 828 So.2d 457, 458 (Fla. 4th DCA 2002); Rios v. State, 791 So.2d 1208 (Fla. 5th DCA 2001); Ford v. State, 749 So.2d 570, 571 (Fla. 5th DCA 2000); Rivera v. State, 745 So.2d 343 (Fla. 4th DCA 1999); Grene v. State, 702 So.2d 510 (Fla. 3d DCA 1996); Austin v. State, 699 So.2d 314 (Fla. 1st DCA 1997); Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996); see also Johnson v. State, 747 So.2d 1027 (Fla. 2d DCA 1999) (holding that under the facts of the case, the two convictions violated the prohibition against double jeopardy and constituted fundamental error that may be raised for the first time on appeal). Accordingly, it is appropriate for us to resolve the double jeopardy issue on the merits despite the fact that Hunsicker neither objected during sentencing nor raised the issues via a rule 3.800(b) motion in the trial court.

Three basic protections emanate from the Double Jeopardy Clauses of the Federal and Florida Constitutions: 1) protection against a subsequent prosecution for the same offense after acquittal; 2) protection against a subsequent prosecution for the same offense after conviction; and 3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted); State v. Wilson, 680 So.2d 411, 413 (Fla.1996).³ It is the third protection that is implicated here and it may prohibit convictions on multiple counts brought in a single prosecution when the convictions arise from conduct committed in a single criminal episode. Cabanela v. State, 871 So.2d 279, 281 (Fla. 3d DCA 2004) ("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."); Swilley v. State, 845 So.2d 930 (Fla. 5th DCA 2003); King v. State, 834 So.2d 311 (Fla. 5th DCA 2003). "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 crimes.'" Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)); see also Cruller v. State, 808 So.2d 201, 203 (Fla.2002). If the Legislature did not clearly express its intention to authorize separate punishments, the courts must resort to the test of statutory construction established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), now codified in section 775.021(4), Florida Statutes (2001). Cruller; Gordon; M.P. The court in Cruller emphasized that if there is a clear expression of legislative intent to require two separate punishments, the analysis ends and we do not resort to the Blockburger test. In accordance with Cruller, we begin our search for clear legislative intent by examining "the language, structure, and legislative history" of section 800.04. Cruller, 808 So.2d at 203. Most cases involving double jeopardy arguments directed to multiple convictions arising from lewd and lascivious acts allegedly committed in a single criminal episode involved charges brought under the version of section 800.04 prior to its amendment in 1999.⁴See Coffield v. State, 872 So.2d 430 (Fla. 4th DCA 2004); Pires v. State, 866 So.2d 1276 (Fla. 4th DCA 2004); Gisi v. State, 848 So.2d 1278 (Fla. 2d DCA 2003); Morman v. State, 811 So.2d 714 (Fla. 2d DCA 2002); Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001). These cases generally hold that double jeopardy was violated if the two acts that formed the basis of the convictions occurred in one location without a temporal break between them so that the defendant did not have sufficient time to pause, reflect, and form a new criminal intent between the occurrences. This is the proper legal analysis to determine whether the acts occurred in a single or in separate criminal episodes. Citing the decision in Morman, the court in Gisi explained the reason the courts employed this analysis:

The Morman court cited State v. Hightower, 509 So.2d 1078 (Fla.1987), for the proposition that "[a]s 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." Morman, 811 So.2d at 717 (quoting Hightower, 509 So.2d at 1079). The Morman court then concluded that "the statute's focus is on conduct involving sexual activity and not upon the individual acts that comprise lewd and lascivious activity in the same spatial and temporal zone." Id.

Gisi, 848 So.2d at 1281. Hence, under this version of the statute, because the focus was not on the individual acts that comprised the crime of lewd and lascivious assault, there was no legislative intent to impose separate punishments for each act that was committed in one criminal episode. Therefore, the courts employed the analysis that a separate crime was committed in a separate criminal episode provided there was a temporal break between each act that allowed the defendant to form a new criminal intent.

Section 800.04 was substantially amended in 1999 to include a definitions section and separate numbered subsections dealing with lewd or lascivious battery, section 800.04(4); lewd or lascivious molestation, section 800.04(5); lewd or lascivious conduct, section 800.04(6); and lewd or lascivious exhibition, ...