Saavedra v. State

• Decision Date: 04 April 1991
• Docket Number: No. 88-561,88-561
• Citation: 576 So.2d 953
• Parties: 15 Fla. L. Weekly D2732, 16 Fla. L. Weekly 908 Tommy SAAVEDRA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 953

576 So.2d 953

15 Fla. L. Weekly D2732, 16 Fla. L. Weekly 908

Tommy SAAVEDRA, Appellant, v. STATE of Florida, Appellee.

No. 88-561.

District Court of Appeal of Florida,

First District.

April 4, 1991.

Elizabeth L. White and William J. Sheppard of Sheppard and White, P.A., Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen. and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

ON MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC

[Original opinion at 15 F.L.W. D2732]

The motions are denied except that the original opinion dated November 8, 1990 is withdrawn and the following opinion is substituted therefor:

MINER, Judge.

In this appeal, Tommy Saavedra challenges his convictions and sentences for burglary, armed kidnapping and three counts of sexual battery. With respect to the sexual battery convictions and sentences, he urges that his multiple punishments for offenses of the same character and type committed against the same person violated double jeopardy principles. He also argues that the trial court erred in denying his motions to suppress and for severance of defendants, in impermissibly restricting his ability to defend against the crimes charged and in applying sentencing guidelines in effect at the time the offenses were committed. Finding no merit in any of appellant's arguments, we affirm the convictions and sentences appealed from.

By amended information, Saavedra and a co-defendant, Donald Teater, ¹ were charged with burglary, armed kidnapping and three counts of sexual battery which offenses occurred when they broke into their next door neighbor's home, forcibly removed a 12 year old girl from the home and repeatedly assaulted her in a nearby park. Prior to trial, appellant filed a motion to sever defendants and a motion to suppress physical evidence, certain statements made by him at the time of his arrest and the pre-trial and any in-court identification of him by the prosecuting witness. These motions were denied without elaboration.

At the suppression hearing, the following facts were established.

During the early morning hours of June 25, 1987, Jacksonville police officer Robert Benfield received a report that a sexual battery had occurred at 366 Tallulah Avenue. When he arrived at the scene, the victim, K.A., informed him that her assailants lived next door at 360 Tallulah Avenue. Benfield went to the home described and knocked on the door, but no one answered. The lights were out and the house was dark. Officers McLean and Pease arrived and, upon looking in the windows of the house with a flashlight, saw two persons lying on a bed. The officers then began to knock on the side of the house to arouse the occupants.

Officer Benfield went to the rear of the house and knocked on the back door. A boy (later identified as appellant's son, Tommy Saavedra, Jr.) appeared at the door. Officer Benfield testified that he identified himself and told the boy that he needed to speak to an adult; that he asked permission to enter; and, that the boy responded "yes" and opened the door. Officer Benfield entered the house and walked into a nearby bedroom, where he found an adult male (later identified as the co-defendant Teater) and a small boy (later identified as Robbie Methvin) in bed. Officer Benfield asked Teater to get out of the bed and arrested him. Officer Benfield testified that he did not hurry into the house, and did not feel that his life was threatened when he was outside the house. By the time Officer Benfield had arrested Teater, Officers Pease and McLean had entered the house and had arrested appellant whom they found in an adjacent bedroom. Officer McLean also testified that he did not feel that his life was in danger when he secured the outside of the house. Officer Pease testified that when he entered the home after Officer Benfield, the boy at the back door told him he could enter.

Tommy Saavedra, Jr. testified that he was 15 years old and had lived with his father for the past year and a half. On the night in question, he was awakened by the officer's knocking on the side of the house. He woke his cousin, Methvin, and together they ran into the living room and looked out the window and saw the police cars. They then ran into the bedroom and jumped into the bed with Teater who told them to lay down on both sides of him. When the police began shining their flashlight in the bedroom, Tommy Saavedra, Jr. and his cousin went to the backdoor and opened it half-way. The police immediately pushed past them without getting consent to enter. Prior to answering the door, young Saavedra did not see or have any conversation with his father. Methvin testified that he was standing behind Tommy, Jr. when he opened the back door. The police did not say anything to either of them and just pushed them aside when they entered. He knew that the police needed a warrant to enter but he was too scared to stop them.

Appellant testified that he had rented the premises at 360 Tallulah Avenue for the past year and a half; that Teater had been temporarily staying with him for the past two and a half weeks because he had no other place to live; and, that Teater never paid Saavedra any rent.

The prosecuting witness testified that at approximately 10:30 p.m., there was a power failure in the neighborhood and that she sat on her front porch with her sister. Next door she saw appellant and Teater talking to her brother, her cousin, Tommy Saavedra, Jr., and Robbie Methvin. When the power failure ended, she went next door, got her brother and her cousin, returned home and thereafter went to bed. At 2:00 a.m., she was awakened by appellant who was kneeling beside her on her bed and shoving something sharp in her side. Appellant and Teater led her from her home to a nearby park. She recognized both defendants throughout the attack which took approximately one hour and 15 minutes. After the attack, she saw the defendants again in the backseat of the police car; the car light was lit, she was on her front porch, and got a clear look at their faces and identified them as her attackers.

On cross-examination, K.A. testified that she had never seen either defendant prior to that night, nor did she know their names (she had moved into her home one month earlier). She first saw them during the power failure when she was sitting inside her screened porch. When the lights went back on, she walked over to their house to get her brother and saw the defendants again for about 30 seconds. On redirect examination, she stated that during the blackout, Saavedra was shining a flashlight on the side of her house and leaning against a parked car between the houses, which are approximately 15-20 feet apart.

In support of his motion to suppress and on appeal, Saavedra argues that his arrest was illegal in that the police entered the house without a warrant, consent or exigent circumstances. Therefore, the subsequent search and seizure were unlawful. The trial court, apparently accepting the state's argument that the entry was consensual, denied the motion. The court also denied the motion to suppress the identifications, finding that the victim had seen the defendants earlier in the evening, in the light and could identify them then; that she had seen them again when she was abducted and attacked; and, that she had positively identified them in the police car. The court concluded that the identifications were not impermissibly suggestive.

The state filed a motion in limine to prohibit testimony regarding an alleged confession made by one John Baldwin (who was not charged with any crimes) to appellant's sister, Vickie Saavedra, that Baldwin, not appellant, committed the crimes. Prior to trial, the trial court granted the motion, admonishing the attorneys not to make any reference to Baldwin's statements in their opening statements.

At trial, K.A. testified that her attackers were dressed in black karate suits. They took her to some bushes in the rear of her house, tore off her clothes, pushed her to the ground and performed vaginal intercourse with her. They then took her to a slide in a park located behind her home and again performed vaginal intercourse. Teater then unsuccessfully attempted anal intercourse. The men led her to a concrete circle in the middle of the park and again performed vaginal intercourse. They told her to remain on the ground for ten minutes while they escaped. She waited three or four minutes and then ran home.

Appellant was convicted as charged and upon denial of his amended motion for a new trial, he took this appeal. In disposing of the issues raised, we shall address the substance of each.

Saavedra first argues that double jeopardy principles preclude convictions and sentences for multiple acts of sexual battery of the same type and character committed against the same victim. Otherwise stated, relying primarily on such cases as Carawan v. State, 515 So.2d 161 (Fla.1987), Wade v. State, 368 So.2d 76 (Fla. 4th DCA 1979) and Roberson v. State, 517 So.2d 99 (Fla. 1st DCA 1987), he contends that he was convicted three times for one continuous act.

While finding no Florida case directly on point, the state nonetheless asserts that each assault occurred at a different time and location and that in between each, Saavedra had time to pause and reflect before again penetrating the victim. Thus, the state concludes, three separate offenses occurred and double jeopardy principles are not implicated. We agree with the state and hold that the criminal acts complained of in this case, although of the same type and character, are sufficiently separated by time and location so that double jeopardy is not involved.

The sexual battery statute may be violated in multiple, alternative ways, i.e "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." § 794.011(1)(g) Fla.Stat. (1...