Seccia v. State, 97-3046

Decision Date12 October 1998
Docket NumberNo. 97-3046,97-3046
Citation720 So.2d 580
Parties23 Fla. L. Weekly D2346 Richard SECCIA, Appellant, v. STATE of Florida, Appellee.
CourtFlorida 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.

WEBSTER, Judge.

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) (the trial court did not abuse its discretion in finding that a 6-year-old child was competent based upon the child's testimony that she knew that it was wrong to lie, that one gets into trouble for lying, and that she would tell the truth).

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) (dual convictions for sexual battery and a lewd act are prohibited when they are both based upon the single act of touching a victim's vagina and then penetrating it). It is...

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13 cases
  • Maddox v. State
    • United States
    • Florida Supreme Court
    • 11 Mayo 2000
    ...Smith and Jerry. C. Impact on Length of Incarceration We have pending for our review the district courts' decisions in Seccia v. State, 720 So.2d 580 (Fla. 1st DCA 1998), review granted, 727 So.2d 910 (Fla.1999) (Case No. 94,138), and Latiif v. State, 711 So.2d 241 (Fla. 5th DCA 1998), revi......
  • Wright v. State, 98-2326.
    • United States
    • Florida District Court of Appeals
    • 10 Agosto 1999
    ...We conclude that the scoresheet calculation question was preserved for appeal by a timely and specific objection. Cf. Seccia v. State, 720 So.2d 580 (Fla. 1st DCA 1998). Wright properly relies on May, 721 So.2d at 741, to support reversal of his sentence. Although the crime of which May was......
  • Latson v. State
    • United States
    • Florida District Court of Appeals
    • 17 Junio 2016
    ...claim not properly raised on direct appeal in light of the enactment of section 924.051, Florida Statutes ); Seccia v. State, 720 So.2d 580, 582 (Fla. 1st DCA 1998), rev'd on other grounds, 764 So.2d 573, 574 (Fla.2000) (declining to address ineffective assistance of counsel issue “because ......
  • Seccia v. State, 1D97-3046.
    • United States
    • Florida District Court of Appeals
    • 5 Abril 2001
    ...General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee. OPINION ON REMAND WEBSTER, J. In Seccia v. State, 720 So.2d 580 (Fla. 1st DCA 1998), we held, among other things, that an argument regarding an alleged sentencing guidelines scoresheet error could not be con......
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1 books & journal articles
  • Crimes
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • 30 Abril 2021
    ...both sexual battery on a child under 12 and lewd molestation for crimes occurring during a single incident. (Holding that Seccia v. S , 720 So. 2d 580 (Fla. 1st DCA 1998) is reversed by State v. Paul , 934 So. 2d 1167 (Fla. 2006) and by the revisions to the lewd molestation statute.) Beahr ......

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