Roberts v. State, No. 91-02998

CourtCourt of Appeal of Florida (US)
Writing for the CourtPARKER; CAMPBELL, A.C.J., and SCHOONOVER
Citation620 So.2d 1082
Docket NumberNo. 91-02998
Decision Date25 June 1993
Parties18 Fla. L. Week. D1502 Jewell ROBERTS, Appellant, v. STATE of Florida, Appellee.

Page 1082

620 So.2d 1082
18 Fla. L. Week. D1502
Jewell ROBERTS, Appellant,
v.
STATE of Florida, Appellee.
No. 91-02998.
District Court of Appeal of Florida,
Second District.
June 25, 1993.

James Marion Moorman, Public Defender, Bartow, and Joel E. Grigsby, Sp. Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sue R. Henderson, Asst. Atty. Gen., Tampa, for appellee.

PARKER, Judge.

Jewell Roberts appeals the final judgment that adjudicated him guilty of four counts of kidnapping, four counts of robbery with a deadly weapon, fourteen counts of lewd and lascivious act on or in the presence of a child, and three counts of sexual battery with a deadly weapon. He raised three issues relative to his convictions, but only one has merit.

The state's evidence established that Roberts approached four girls under the age of sixteen at a ballfield area in a city park. He held a knife to one of the girls and ordered all of the girls into a nearby ballfield dugout. Roberts first rubbed each girl's breasts. Next he instructed the girls to remove their pants and panties, after which Roberts rubbed and in some cases inserted his finger into the girls' vaginas. Roberts then exposed his penis, masturbated, and ejaculated while standing behind the girls. He also forced some of the girls to touch his penis. Finally, Roberts instructed the girls to "play with themselves like they did at night in bed," which caused the girls to touch their vaginas. Roberts then took the girls' panties and left. When arrested, some of the girls' panties were in Roberts's possession.

Page 1083

In counts 12, 16, 19, and 24, the state charged Roberts with four counts of a lewd and lascivious act in the presence of a child under sixteen years of age pursuant to section 800.04(4), Florida Statutes (Supp.1990). These four counts encompass one act, i.e., "exposing and/or touching and/or masturbating his penis." Roberts argues and we agree that he can be charged for only the number of acts, not the number of victims. The Florida Supreme Court, in State v. Hernandez, 596 So.2d 671 (Fla.1992), held that the "number of distinct lewd acts should be determinative" of the number of allowable convictions. Hernandez, 596 So.2d at 672. The supreme court specifically disapproved of this court's opinion in Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989) which held that the state correctly charged the defendant with five counts of masturbation in...

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2 practice notes
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • 29 Mayo 2001
    ...DCA 1998). Exposing adult genitalia to a child has been held to violate section 800.04(4), Florida Statutes (1997). See Roberts v. State, 620 So.2d 1082, 1082 (Fla. 2d DCA 1993). Otherwise, the apparent function of former section 800.04(4) was to proscribe lewd or lascivious acts perpetrate......
  • Bond v. State, No. 93-1432
    • United States
    • Court of Appeal of Florida (US)
    • 23 Septiembre 1994
    ...for committing a lewd act in the presence of a child, not the size of the audience or the number of witnesses. See also Roberts v. State, 620 So.2d 1082 (Fla. 2d DCA 1993). Since the evidence in this case established only one lewd act, one of the convictions must be reversed. Although only ......
2 cases
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • 29 Mayo 2001
    ...DCA 1998). Exposing adult genitalia to a child has been held to violate section 800.04(4), Florida Statutes (1997). See Roberts v. State, 620 So.2d 1082, 1082 (Fla. 2d DCA 1993). Otherwise, the apparent function of former section 800.04(4) was to proscribe lewd or lascivious acts perpetrate......
  • Bond v. State, No. 93-1432
    • United States
    • Court of Appeal of Florida (US)
    • 23 Septiembre 1994
    ...for committing a lewd act in the presence of a child, not the size of the audience or the number of witnesses. See also Roberts v. State, 620 So.2d 1082 (Fla. 2d DCA 1993). Since the evidence in this case established only one lewd act, one of the convictions must be reversed. Although only ......

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