Seccia v. State, 97-3046
Decision Date | 12 October 1998 |
Docket Number | No. 97-3046,97-3046 |
Citation | 720 So.2d 580 |
Parties | 23 Fla. L. Weekly D2346 Richard SECCIA, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Mark E. Walker, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Stephen R. White, Assistant Attorney General, Tallahassee, for Appellee.
In this direct criminal appeal, appellant seeks review of his convictions for sexual battery upon a child younger than age 12 and for a lewd, lascivious or indecent act upon a child, arguing that the trial court erroneously found that the child-victim was competent to testify, and that the dual convictions violated the prohibition against double jeopardy. He also challenges the sentencing guidelines scoresheet used to determine his sentence for the lewd-act conviction. We affirm.
This is the second time that this matter has been before us. In Seccia v. State, 689 So.2d 354 (Fla. 1st DCA 1997), we reversed appellant's convictions for sexual battery upon a child younger than age 12 and for a lewd, lascivious or indecent act upon a child, and remanded those charges for a new trial. Our decision was based upon our conclusion that the trial court had abused its discretion when it found that the child-victim was competent to testify based upon the voir dire that took place because the voir dire failed to establish either that the child had the ability to observe, recollect and narrate facts or that he had a moral sense of the duty to tell the truth. Id. at 356. Following the retrial, which again resulted in convictions, appellant again challenges the trial court's finding that the child-victim was competent to testify. However, this new challenge is based exclusively upon the claim that the voir dire failed to establish that the child had a moral sense of the duty to tell the truth.
The child, who was nearly eight years old at the time of the second trial, demonstrated that he knew the difference between the truth and a lie. He also stated that it was wrong to tell a lie, particularly in court, because "something bad" could happen; that one is punished when one lies; that one has an obligation to tell the truth, particularly in court; and that the judge would punish him if he did not tell the truth in court. Finally, he promised to tell the truth. Based upon the child's responses (which were considerably more positive, and less equivocal, than those given during the first trial) to the questions asked, and considering the child's age, we are unable to say that the trial court's finding constituted an abuse of discretion. See Baker v. State, 674 So.2d 199 (Fla. 4th DCA 1996) ( ).
Appellant next argues that his convictions for both sexual battery and a lewd act violate the prohibition against double jeopardy because both were based upon a single act, relying on cases such as Audano v. State, 641 So.2d 1356 (Fla. 2d DCA 1994) ( ). It is...
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