Meshell v. State

• Decision Date: 11 April 2008
• Docket Number: No. 5D07-2471.,5D07-2471.
• Citation: 980 So.2d 1169
• Court: Florida District Court of Appeals
• Parties: Joshua MESHELL, Appellant, v. STATE of Florida, Appellee.

980 So.2d 1169

Joshua MESHELL, Appellant, v. STATE of Florida, Appellee.

No. 5D07-2471.

District Court of Appeal of Florida, Fifth District.

April 11, 2008.

James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Joshua Meshell appeals from his judgments and sentences on multiple counts of lewd and lascivious battery,¹ raising one double jeopardy issue relating to only one of the charges. We agree with Meshell that our prior decision in Capron v. State, 948 So.2d 954 (Fla. 5th DCA 2007), requires reversal of the challenged conviction. However, we also recognize that this result seems irreconcilable with a line of cases from other district courts holding that double jeopardy does not bar multiple sexual battery² convictions for distinctly different sex acts committed on the same victim during a single criminal episode. Therefore, although we reverse the challenged conviction, we also note the inherent conflict between our holding and the sexual battery line of cases which treats different sex acts as "distinct criminal acts" for double jeopardy purposes, and certify a question relating to the issue before us. In addressing this case, we will first discuss case law relating to a double jeopardy analysis, generally. Next, we will discuss the facts of this case. Finally, we will analyze the facts in light of relevant case law, which will require a discussion of the different treatment given by Florida courts to the same double jeopardy problem arising under the sexual battery and lewd and lascivious battery statutes. As a result of this discussion, we conclude that further clarification from our supreme court is needed.

Double Jeopardy

"Double jeopardy" refers to the double jeopardy clause of the Fifth Amendment to our United States Constitution. Florida's constitution contains a similar provision. See Art. I, § 9, Fla. Const. As more thoroughly explained in State v. Paul, 934 So.2d 1167, 1171 (Fla.2006), the double jeopardy clause provides three separate constitutional protections, including a prohibition against multiple punishments for the same offense, which is the matter at issue here. With respect to this protection, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Consequently, "[t]he 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.'" Paul, 934 So.2d at 1171-1172 (Fla.2006) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court created a test for use in determining whether multiple punishments for the same conduct violate double jeopardy in the absence of an explicit statement of legislative intent to authorize separate punishments for two crimes. In Florida, the Blockburger test has been codified in section 775.021, Florida Statutes.

Of particular relevance to our analysis is section 775.021(4)(a), Florida Statutes, which codifies the Blockburger "same elements" test, pursuant to which offenses committed during the same criminal episode are considered separate for double jeopardy purposes "if each offense requires proof of an element that the other does not." Id.

Relevant Facts

Meshell, age twenty-three, was charged with five counts of lewd and lascivious battery for sex acts he allegedly committed with a thirteen-year-old girl, occurring over a three-day period. Counts 1 through 3 alleged three distinct sex acts, all occurring on the same date, as follows: (1) Meshell "did with his penis penetrate or have union with the vagina of [the victim];" (2) Meshell "did with his mouth have union with the vagina of [the victim];" and (3) Meshell "did with his penis have union with the mouth of [the victim]." At trial, the victim testified that: "we just started touching each other and then we kind of — he put his mouth on my vagina and I put my mouth on his penis, and then he put his penis in my vagina." Meshell's post-miranda written confession, which was also introduced at trial, recounts the events in similar summary fashion, but does not state that he performed oral sex on the victim. The jury returned guilty verdicts on all counts but count 2.

Issue On Appeal And Analysis

On appeal, Meshell argues that his convictions and sentences on counts 1 and 3 violate double jeopardy because the record is devoid of evidence demonstrating a temporal break between the sex acts sufficient to allow time for reflection, citing to Capron. In that case, a panel of our court found double jeopardy violations for lewd or lascivious battery convictions involving different sex acts, where the defendant did not have time to "`pause, reflect, and form a new criminal intent between'" each act. Capron, 948 So.2d at 958 (quoting Mijarez v. State, 889 So.2d 827, 828 (Fla. 4th DCA 2004)). The significance of the "pause" in this context is that the law views any additional criminal act occurring after a pause with sufficient time for reflection as a new criminal transaction or episode. Paul, 934 So.2d at 1172-73 (citations omitted). The double jeopardy clause does not bar multiple convictions for the same crime committed in a new criminal episode. Id. Therefore, in our context, if a defendant committed the exact same sex act upon his victim twice, there would be no double jeopardy bar prohibiting two convictions for the same crime, as long as a sufficient pause (or "temporal break") existed between the two acts to allow the defendant to reflect and form a new criminal intent. Id. at 1173-74 (citations omitted).³

Applying Capron to the facts of this case, we agree that a reversal of one of the lewd or lascivious battery convictions is required because there was no evidence of any pause between the sex acts.

This result, however, appears irreconcilable with a line of cases addressing double jeopardy claims relating to different sex acts proscribed in section 794.011, Florida Statutes, the sexual battery statute. First, we note that the lewd and lascivious battery statute, under which Meshell was prosecuted, proscribes "sexual activity" with a minor, which the statute defines using a list of specifically described sex acts that is identical to the definition of sexual battery found in section 794.011. Compare § 800.04(1)(a) ("`Sexual activity' means the 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 ...") with § 794.011(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 ..."). Therefore, we can see no logical reason to treat the statutes differently.

However, it appears that every district court in Florida that has addressed the issue, except ours, has held that each distinct sex act described in section 794.011, Florida Statutes, is a different criminal act for purposes of double jeopardy analysis, so that a separate conviction is allowed for each distinct act committed during a single criminal episode (without any temporal break). See, e.g., Schwenn v. State, 898 So.2d 1130 (Fla. 4th DCA 2005), Saavedra v. State, 576 So.2d 953 (Fla.1st DCA 1991), approved on other grounds, 622 So.2d 952 (Fla.1993), cert. denied, 510 U.S. 1080, 114 S.Ct. 901, 127 L.Ed.2d 93 (1994); Pulido v. State, 566 So.2d 1388 (Fla. 3d DCA 1990); Grunzel v. State, 484 So.2d 97 (Fla. 1st DCA 1986), Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986); Duke v. State, 444 So.2d 492 (Fla. 2d DCA), approved on other grounds, 456 So.2d 893 (Fla.1984); but cf. Newell v. State, 935 So.2d 83, 84 (Fla. 5th DCA 2006) ("The issue involving the convictions for two counts of sexual battery is governed by the principle[ ] ... that in order for crimes to be considered to have occurred in more than one criminal episode, there must be such a sufficient temporal break between the two acts as to allow the offender to reflect and form a new criminal intent for each offense.").

In Grunzel, for example, the court noted that sexual battery could be committed in a number of separately enumerated ways. Because "each act" in that case "was a sexual battery of a separate character and type which logically requires different elements of proof," the court held each act to be a "separate criminal offense" notwithstanding "the short interval of time that evolved between the acts involved." In that case, the defendant had performed oral sex on the victim "a few seconds before having intercourse with her." Yet, because each charge related to a distinctly different sex act separately proscribed as sexual battery, the court found no double jeopardy violation. Grunzel, 484 So.2d at 98; see also Paul, 934 So.2d at 1173 n. 3 ("Of course, if two convictions occurred based on two distinct criminal acts, double jeopardy is not a concern.") (citing Hayes v. State, 803 So.2d 695, 700 (Fla.2001)).

The other sexual battery cases cited above all follow this reasoning, holding that "each act is a sexual battery of a separate character and type which logically requires different elements of proof." Duke, 444 So.2d at 494. As further explained in Duke: "Clearly, penetration of the vagina and penetration of the anus are distinct acts necessary to complete each sexual battery. Therefore, notwithstanding the short interval of time involved here, we believe each act is a separate criminal offense." Id. This analysis appears to be consistent...