Roark v. State, No. 92-380

CourtCourt of Appeal of Florida (US)
Writing for the CourtWOLF
Citation620 So.2d 237
Parties18 Fla. L. Week. D1489 Roger Joe ROARK, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 92-380
Decision Date22 June 1993

Page 237

620 So.2d 237
18 Fla. L. Week. D1489
Roger Joe ROARK, Appellant,
v.
STATE of Florida, Appellee.
No. 92-380.
District Court of Appeal of Florida,
First District.
June 22, 1993.

Page 238

Nancy A. Daniels, Public Defender, Nada M. Carey, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.

WOLF, Judge.

Roark was convicted of sexual battery upon C.B., battery upon C.B., and lewd and lascivious assault upon her sister, E.B. Appellant raises a number of issues on appeal, one of which is dispositive and will be discussed herein: Whether the trial court reversibly erred in failing to sever the lewd and lascivious count from the sexual battery counts. We find that the incidents in question were not connected in an episodic sense and, thus, the trial court erred in failing to grant the motion to sever. We also determine that this error was not harmless under the facts of this case; therefore, we reverse the convictions and remand for new trials.

The victims in the instant case are C.B., nine years old, and E.B., 11 years old. The appellant is an uncle to the victims. 1 The appellant was charged with count I) capital sexual battery "by placing his finger in the vagina of C.B."; count II) capital sexual battery "by placing his finger in the anus of C.B."; and count III) lewd and lascivious assault upon E.B. Appellant's motion to sever all counts was denied. The jury found the appellant guilty as charged on counts I and III, and guilty of the lesser-included offense of simple battery on count II.

Both victims testified at trial. C.B. testified that the appellant had rubbed her breasts and touched her on her front and back private parts, that he had put his finger inside her when they were covered with a blanket while watching television, and on another occasion, he put his finger in her butt. E.B. testified that the appellant had touched her breasts and private parts over her clothes. The evidence also revealed that C.B. had given a number of conflicting statements to the police, her doctor, and her counselor from the child protection team concerning the extent of the physical attacks by appellant.

Christine Brankston, a child protection team coordinator, testified concerning out-of-court statements made by both children. The versions told to Brankston was essentially the same as the trial court testimony of the children. Dr. Soha, the child protection team physician, testified concerning physical characteristics of C.B.'s vaginal area which were consistent with vaginal penetration, and also testified concerning statements made to her by C.B. during the course of her examination. Testimony was also received from several police officers concerning their contact with and conversations with both victims.

Rule 3.150(a), Fla.R.Crim.P., states

Page 239

Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses ... are based on the same act or transaction or on two more connected acts or transactions.

In order for offenses to be properly consolidated for trial, they must be connected in an "episodic" sense. Garcia v. State, 568 So.2d 896 (Fla.1990); Livingston v. State, 565 So.2d 1288, 1290 (Fla.1988).

Quoting from Garcia v. State, 568 So.2d 896, 899 (Fla.1990), the supreme court recently stated that the

"connected acts or transactions" requirement of rule 3.150 means that the acts joined for trial must be considered "in an episodic sense[.] [T]he rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are 'connected' only by similar circumstances and the accused's alleged guilt in both or all instances." Paul [v. State, 365 So.2d 1063, 1065-66 (Fla. 1st DCA1979)...

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10 practice notes
  • Hammond v. State, No. 94-02262
    • United States
    • Court of Appeal of Florida (US)
    • September 22, 1995
    ...the court found similarity in the offenses from the custodial authority of the defendant, that finding was erroneous. In Roark v. State, 620 So.2d 237, 239 (Fla. 1st DCA), rev. denied, 629 So.2d 135 (Fla.1993), the court stated that it was error not to sever offenses that "were related only......
  • Tartarini v. State, CASE NOS. 1D10-4877 & 1D10-4879
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 2012
    ...and they [were] without question 'linked in some significant way.'" Id. Much closer to the present case were the facts in Roark v. State, 620 So. 2d 237 (Fla. 1st DCA 1993). There we held the trial court erred in failing to grant Roark's motion to sever a count of lewd and lascivious assaul......
  • Burnett v. State, No. 2D07-738.
    • United States
    • Court of Appeal of Florida (US)
    • January 16, 2008
    ...been required. However, the postconviction court's analysis of the propriety of severance was insufficient. As noted in Roark v. State, 620 So.2d 237, 239 (Fla. 1st DCA 1993), "in child sexual molestation cases, motions to sever should be granted where offenses occurred at different times a......
  • Tartarini v. State, Nos. 1D10–4877
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 2012
    ...they [were] without question ‘linked in some significant way.’ " Id. Much closer to the present case were the facts in Roark v. State, 620 So.2d 237 (Fla. 1st DCA 1993). There we held the trial court erred in failing to grant Roark's motion to sever a count of lewd 84 So.3d 1189 and lascivi......
  • Request a trial to view additional results
10 cases
  • Hammond v. State, No. 94-02262
    • United States
    • Court of Appeal of Florida (US)
    • September 22, 1995
    ...the court found similarity in the offenses from the custodial authority of the defendant, that finding was erroneous. In Roark v. State, 620 So.2d 237, 239 (Fla. 1st DCA), rev. denied, 629 So.2d 135 (Fla.1993), the court stated that it was error not to sever offenses that "were related only......
  • Tartarini v. State, CASE NOS. 1D10-4877 & 1D10-4879
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 2012
    ...and they [were] without question 'linked in some significant way.'" Id. Much closer to the present case were the facts in Roark v. State, 620 So. 2d 237 (Fla. 1st DCA 1993). There we held the trial court erred in failing to grant Roark's motion to sever a count of lewd and lascivious assaul......
  • Burnett v. State, No. 2D07-738.
    • United States
    • Court of Appeal of Florida (US)
    • January 16, 2008
    ...been required. However, the postconviction court's analysis of the propriety of severance was insufficient. As noted in Roark v. State, 620 So.2d 237, 239 (Fla. 1st DCA 1993), "in child sexual molestation cases, motions to sever should be granted where offenses occurred at different times a......
  • Tartarini v. State, Nos. 1D10–4877
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 2012
    ...they [were] without question ‘linked in some significant way.’ " Id. Much closer to the present case were the facts in Roark v. State, 620 So.2d 237 (Fla. 1st DCA 1993). There we held the trial court erred in failing to grant Roark's motion to sever a count of lewd 84 So.3d 1189 and lascivi......
  • Request a trial to view additional results

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