Sanders v. State

• Decision Date: 03 October 2012
• Docket Number: No. 1D11–4206.,1D11–4206.
• Citation: 101 So.3d 373
• Parties: Sharyon SANDERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

101 So.3d 373

Sharyon SANDERS, Appellant,

v.STATE of Florida, Appellee.

No. 1D11–4206.

District Court of Appeal of Florida, First District.

Oct. 3, 2012.

Sheila Callahan, Assistant Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

WETHERELL, J.

Sharyon Sanders appeals his convictions and sentences for two counts of lewd or lascivious molestation. He raises two issues: 1) that his dual convictions violate double jeopardy, and 2) that the trial court erred in imposing a $20 surcharge for the Crime Stoppers Trust Fund and a $100 cost of prosecution. For the reasons that follow, we affirm Sanders' convictions and sentences but remand for the trial court to strike the $20 surcharge.

Sanders was charged with two counts of lewd or lascivious molestation, ¹ one count alleging that he “placed his mouth on [the victim's] penis” and the other count alleging that he “forc[ed] [the victim] to touch the defendant's penis.” The jury found Sanders guilty as charged. At sentencing, Sanders argued that double jeopardy precluded his conviction for both counts of lewd or lascivious molestation because the offenses occurred in one criminal incident. The trial court rejected this argument and sentenced Sanders as a prison release reoffender (PRR) to an aggregate term of 40 years in prison, including consecutive 15–year terms for the lewd or lascivious molestation offenses.

While this appeal was pending, Sanders filed a rule 3.800(b)(2) motion in which he challenged the imposition of consecutive PRR sentences and the imposition of certain fines and surcharges that were not orally announced by the trial court at the sentencing hearing. The trial court granted the motion in part, striking a $1,050 fine and a $52.50 surcharge and correcting Sanders' sentence to reflect that he was sentenced as a PRR on only one of the lewd or lascivious molestation counts. The court denied the motion with respect to the $20 surcharge for the Crime Stoppers Trust Fund imposed pursuant to section 938.06(1), Florida Statutes (2009), and the $100 cost of prosecution imposed pursuant to section 938.27(8).

As he did below, Sanders contends on appeal that his convictions for both counts of lewd or lascivious molestation violate double jeopardy because the offenses arose out of the same criminal episode and collectively constitute one criminal offense. We review this claim de novo. See R.J.R. v. State, 88 So.3d 264, 267 (Fla. 1st DCA 2012) (citing Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006)).

Double jeopardy prohibits multiple convictions for the same offense, but there is no prohibition against multiple convictions and punishments for different offenses arising out of the same criminal episode so long as the Legislature intended to authorize separate punishments for the offenses. See Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009); Partch v. State, 43 So.3d 758 (Fla. 1st DCA 2010). Where, as here, there is no clear statement of legislative intent to authorize separate punishments, the court conducts a three-part inquiry to determine whether separate offenses exist or whether the same offense has been charged multiple times. See Partch, 43 So.3d at 760;see also Smith v. State, 41 So.3d 1041 (Fla. 1st DCA 2010).

The court must first determine whether the offenses occurred in the same criminal episode. Smith, 41 So.3d at 1042. If so, then the court must determine whether the offenses are predicated on more than one distinct act. Id. If the charges are not predicated on distinct acts and occurred in the same criminal episode, the court then applies the Blockburger² test, as codified in section 775.021, Florida Statutes, to determinewhether each offense has an element that the other does not, and if so, whether any of the exceptions in that statute apply to preclude separate convictions. Id. If it is determined that the charged offenses occurred in different criminal episodes or constituted different acts, no further analysis is necessary and the separate offenses do not violate double jeopardy. Id.; see also State v. Paul, 934 So.2d 1167, 1172 n. 3 (Fla.2006) (“Of course, if two convictions occurred based on two distinct criminal acts, double jeopardy is not a concern.”), receded from in part by Valdes, 3 So.3d at 1068.

Here, the record establishes that the acts comprising the two lewd or lascivious molestation offenses occurred in the same location and in the same criminal episode with no significant temporal break between the two acts. But, as discussed below, the offenses are based on separate and distinct acts proscribed by the lewd or lascivious molestation statute. Accordingly, double jeopardy does not bar Sanders' dual convictions for these offenses.

Section 800.04(5)(a), Florida Statutes (2009), defines the crime of lewd or lascivious molestation as “intentionally touch[ing] in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forc[ing] or entic [ing] a person under 16 years of age to so touch the perpetrator ...” (emphasis added). Thus, a person can violate this statute in two separate and distinct ways: 1) by touching the victim in the proscribed manner, or 2) by forcing or enticing the victim to touch the person in the proscribed manner.

This court held in Roberts v. State, 39 So.3d 372 (Fla. 1st DCA 2010), that double jeopardy did not preclude multiple lewd or lascivious molestation convictions arising out of a single criminal episode. The defendant in Roberts was charged with two counts of sexual battery and two counts of lewd or lascivious molestation. Id. at 373. Each count was based on a different sexual act, with the lewd or lascivious molestation counts being committed 1) when the defendant touched the victim's genitals with his hand and 2) when he touched the victim's breasts and/or buttocks with his hands and/or mouth. Id. Applying the reasoning in State v. Meshell, 2 So.3d 132 (Fla.2009), this court held that because the lewd or lascivious molestation statute includes sexual acts of separate character and type requiring different elements of proof, double jeopardy does not preclude multiple convictions predicated on distinct acts committed during the same criminal episode. Id. at 373–74 (noting that the supreme court in Meshell clarified that sex acts proscribed in the lewd or lascivious battery statute, like the sexual battery statute, were of a separate character and type requiring different elements of proof and thus were distinct criminal acts, and punishment for such distinct acts did not violate double jeopardy); see also Comas v. State, 45 So.3d 49 (Fla. 1st DCA 2010) (applying Meshell and Roberts and holding that double jeopardy did not bar convictions for lewd or lascivious molestation and lewd or lascivious conduct because even though the offenses were committed during “basically the same incident,” they were based on distinct criminal acts), rev. denied59 So.3d 107 (Fla.2011); but cf. Benjamin v. State, 77 So.3d 781 (Fla. 4th DCA 2011) (applying Paul and holding that double jeopardy bars dual convictions for lewd or lascivious molestation (for touching the victim in the genital area) and lewd or lascivious conduct (for kissing the victim on the neck) because the offenses occurred during the same criminal episode).

The reasoning in Roberts applies with greater force in this case. The offenses in Roberts involved the defendant touching the victim in multiple places with his hands and/or his mouth. Here, Sanders was charged with putting his mouth on the victim's penis and also forcing the victim to touch his penis. Although these offenses occurred within a single criminal episode, they are clearly “sexual acts of a separate character and type requiring different elements of proof.” Roberts, 39 So.3d at 374 (quoting Meshell, 2 So.3d at 134). Accordingly, applying the rationale in Roberts, it follows that these offenses are “distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.” Id. (quoting Meshell, 2 So.3d at 135).

We recognize that the Second District stated in Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009), that “[t]he reasoning of Meshell does not apply to convictions under section 800.04(5)(a) because that section prohibits lewd or lascivious touching and proscribes sexual acts that are different from the acts that are proscribed in the sexual battery statute.” The court made this statement in the context of a petition alleging ineffective assistance of appellate counsel, not a direct appeal. Id. at 78. As a result, the court did not hold that the defendant was entitled to relief on his double jeopardy claim; rather, the court held that the defendant's appellate counsel was ineffective for not raising the issue and, thus, the defendant was “entitled to legal representation to argue his double jeopardy claim.” Id. at 80. The court apparently rejected the claim on the merits because it per curiam affirmed the defendant's subsequent...