Simmons v. State, No. 98-1010.

CourtCourt of Appeal of Florida (US)
Writing for the CourtHARRIS, J.
PartiesWilliam Eugene SIMMONS, Appellant, v. STATE of Florida, Appellee.
Decision Date20 November 1998
Docket NumberNo. 98-1010.

722 So.2d 862

William Eugene SIMMONS, Appellant,
v.
STATE of Florida, Appellee

No. 98-1010.

District Court of Appeal of Florida, Fifth District.

November 20, 1998.

Rehearing Denied January 7, 1999.


Terrence E. Kehoe of Law Office of Terrence E. Kehoe, and James M. Russ, of Law Office of James M. Russ, Orlando, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for appellee.

HARRIS, J.

Simmons was convicted of two counts of committing a lewd act by having sexual intercourse with a child under sixteen and, because each child witnessed the sexual act being committed on the other, two counts of committing a lewd act in the presence of a child. He appeals contending that the commission of a sexual act on one child (section 800.04(3), Florida Statutes) cannot constitute the separate crime of committing a lewd and lascivious act in the presence of another child (section 800.04(4), Florida Statutes). We disagree.

We find State v. Hernandez, 596 So.2d 671 (Fla.1992), and Petersen v. State, 650 So.2d 223 (Fla. 5th DCA 1995), both inapplicable to this case. In Hernandez, the defendant committed a single act of masturbation in the presence of two children. In Petersen, the defendant exposed himself in the presence of three children. In each case, the defendant was charged with committing a single act which violated a single section of the statute. It was held in each case that the fact that there were multiple witnesses to the offense did not create multiple offenses. In our case, however, defendant was charged with committing two separate sex acts on a child prohibited by subsection (3) of section 800.04, each of which gave rise to a separate offense of lewd acts committed in the presence of a child under subsection (4) of the same statute. Hence, the same sexual act committed on victim one also constitutes a lewd act committed in the presence of victim two. This conclusion is consistent with the legislative direction contained in section 775.021(4), Florida Statutes, that separate convictions be entered for even a single act if the act violates separate criminal provisions.

Simmons also urges that his impeachment on a collateral issue was improper and that he is entitled to a new trial. Again, we disagree. The fourteen year old victims in this case testified that Simmons had provided them with cocaine on several occasions leading

up to the sexual...

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1 practice notes
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...section 800.04(4) was to proscribe lewd or lascivious acts perpetrated on a third party in the presence of a child. See Simmons v. State, 722 So.2d 862, 862 (Fla. 5th DCA 1998); Buggs v. State, 693 So.2d 57, 59 (Fla. 5th DCA 1997); Brinson v. State, 574 So.2d 298, 299 (Fla. 5th DCA 1991). N......
1 cases
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...section 800.04(4) was to proscribe lewd or lascivious acts perpetrated on a third party in the presence of a child. See Simmons v. State, 722 So.2d 862, 862 (Fla. 5th DCA 1998); Buggs v. State, 693 So.2d 57, 59 (Fla. 5th DCA 1997); Brinson v. State, 574 So.2d 298, 299 (Fla. 5th DCA 1991). N......

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