Roberts v. State Of Fla.

• Decision Date: 21 July 2010
• Docket Number: No. 1D08-1747.,1D08-1747.
• Citation: 39 So.3d 372
• Parties: Arrie Frank ROBERTS, Jr., Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

39 So.3d 372

Arrie Frank ROBERTS, Jr., Appellant,v.STATE of Florida, Appellee.

No. 1D08-1747.

District Court of Appeal of Florida,

First District.

June 21, 2010.

Rehearing Denied July 21, 2010.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Donna A. Gerace and Christine A. Guard, Assistant Attorneys General, Tallahassee, for Appellee.

WOLF, J.

Appellant challenges his convictions for two counts of sexual battery of a person less than 12 years of age and two counts of lewd or lascivious molestation of a victim less than 12 years of age. We affirm but address one issue: whether appellant's convictions violated the Double Jeopardy clause of the Florida and federal constitutions.

Appellant was charged by information with sexual battery of a person less than 12 years of age by “union with and/or penetration of the victim's vagina by the penis of [appellant]” (count 1), and “oral penetration of the victim's mouth by the penis of [appellant]” (count 2), pursuant to section 794.011(2)(a), Florida Statutes (2006). He was also charged with lewd or lascivious molestation of a victim less than 12 years of age (counts 3-4), pursuant to section 800.04(5)(b) (2006). The jury verdict form specified count 3 was for lewd or lascivious molestation by “touching of [the victim's] genitals with [appellant's] hand,” and count 4 was for lewd or lascivious molestation by “touching [the victim's] breasts and/or buttocks with [appellant's] hands and/or mouth.”

Here, the victim testified appellant committed acts constituting lewd or lascivious molestation twice: during the episode in which he committed sexual battery by vaginal penetration, and during the episode in which he committed sexual battery by oral penetration. Her testimony did not indicate a temporal break between the molestation and the sexual battery in either episode.

In Beahr v. State, 992 So.2d 844, 845 (Fla. 1st DCA 2008), this court considered a similar double jeopardy claim where a defendant was convicted of sexual battery of a child less than 12 years of age pursuant to section 794.011(2)(a) and lewd or lascivious molestation of a victim less than 12 years of age pursuant to section 800.04(5)(b), for acts committed during the same criminal episode. This court found “there is no clear statement of legislative intent to have sexual battery and lewd or lascivious molestation punished separately when the two crimes occur in the course of a single criminal episode.” Id. at 846. This court then applied the Blockburger test and concluded, “when sexual battery and lewd or lascivious molestation occur in the same criminal episode, they constitute the same offense for double jeopardy purposes and may not be punished separately,” reasoning “sexual battery cannot occur without a touching of one of the body parts listed in section 800.04(5).” Id. at 847.

However, more recently in State v. Meshell, 2 So.3d 132, 135 (Fla.2009), the Florida supreme court clarified, “sexual acts of a separate character and type requiring different elements of proof, such as those proscribed in the sexual battery statute, are distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.”

In Meshell, the defendant was convicted of two counts of lewd and lascivious battery pursuant to section 800.04, one count by vaginal penetration and one count by oral penetration. Id. The Fifth District found dual convictions for the same offense violated double jeopardy because the record did not demonstrate a “temporal break” sufficient for the defendant to have formed a new criminal intent. Id. at 134. However, the supreme court found, “[d]istinct acts of sexual battery do not require a ‘temporal break’ .... the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal penetration) are of a separate character and type requiring different elements of proof and are, therefore, distinct criminal acts. Thus, punishments for these distinct criminal acts do not violate double jeopardy.” Id. at 134, 136. Applying the facts of the case, the court concluded, “[b]ecause the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1, there is not a double jeopardy violation.” Id. at 136.

The supreme court's reasoning in Meshe...