State v. Hernandez, No. 77834

CourtUnited States State Supreme Court of Florida
Writing for the CourtMcDONALD; SHAW
Citation596 So.2d 671
PartiesSTATE of Florida, Petitioner, v. Francisco HERNANDEZ, Respondent. 596 So.2d 671, 17 Fla. L. Week. S223
Decision Date02 April 1992
Docket NumberNo. 77834

Page 671

596 So.2d 671
STATE of Florida, Petitioner,
v.
Francisco HERNANDEZ, Respondent.
No. 77834.
596 So.2d 671, 17 Fla. L. Week. S223
Supreme Court of Florida.
April 2, 1992.

Robert A. Butterworth, Atty. Gen., and Joan Fowler, Sr. Asst. Atty. Gen., Chief, Criminal Law, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for petitioner.

Douglas N. Duncan of Wagner, Nugent, Johnson, Roth, Kupfer & Rossin, P.A., West Palm Beach, for respondent.

McDONALD, Justice.

We review Hernandez v. State, 575 So.2d 1321 (Fla. 4th DCA 1991), because it conflicts with Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. The issue we address is: When an individual commits a single act of lewd behavior in front of more than one child, can that person be charged with and convicted of a separate count of lewd act for each child present? We answer the question in the negative, approve the decision under review, and disapprove Bergen.

Two girls, ten and eleven years old, claimed that Hernandez exposed himself and masturbated in front of them and that he lifted up one of the girls' shirt and fondled her breasts. The State charged Hernandez with one count of lewd assault by fondling a child's breasts and two counts of lewd act by exposing himself and masturbating in front of the two girls. The jury convicted Hernandez on all three counts as charged.

On appeal the district court reversed Hernandez' convictions and held, among other things, * that he could not be convicted

Page 672

of and sentenced for two counts of lewd act based upon a single incident of improper behavior in front of two children. Bergen, on the other hand, allowed five convictions under subsection 800.04(3), Florida Statutes (1987), when the defendant masturbated in the presence of five children. We disagree with Bergen.

Section 800.04, Florida Statutes (1987), provides:

Any person who:

(1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner;

(2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or

(3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Neither the victim's lack of chastity nor the victim's...

To continue reading

Request your trial
8 practice notes
  • Belcher v. State, No. 92-1653
    • United States
    • Court of Appeal of Florida (US)
    • October 21, 1994
    ...to specific intent crimes. See Bergen v. State, 552 So.2d 262 (Fla. 2nd DCA 1989), disapproved of on other grounds, State v. Hernandez, 596 So.2d 671 (Fla.1992); see also Harris v. State, 418 So.2d 416 (Fla. 1st DCA 1982), review denied, 426 So.2d 26 (Fla.1983) (attempted lewd assault upon ......
  • Simmons v. State, No. 98-1010.
    • United States
    • Court of Appeal of Florida (US)
    • November 20, 1998
    ...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 ......
  • Petersen v. State, No. 93-1269
    • United States
    • Court of Appeal of Florida (US)
    • February 17, 1995
    ...present. A person can only be charged, convicted and sentenced for one act even though seen by more than one person. State v. Hernandez, 596 So.2d 671 (Fla.1992); Alfonso v. State, 633 So.2d 126 (Fla. 3d DCA REVERSED and REMANDED. DAUKSCH, J., concurs specially, with opinion. GRIFFIN, J., c......
  • Roberts v. State, No. 91-02998
    • United States
    • Court of Appeal of Florida (US)
    • June 25, 1993
    ...we agree that he can be charged for only the number of acts, not the number of victims. The Florida Supreme Court, in State v. Hernandez, 596 So.2d 671 (Fla.1992), held that the "number of distinct lewd acts should be determinative" of the number of allowable convictions. Hernandez, 596 So.......
  • Request a trial to view additional results
8 cases
  • Belcher v. State, No. 92-1653
    • United States
    • Court of Appeal of Florida (US)
    • October 21, 1994
    ...to specific intent crimes. See Bergen v. State, 552 So.2d 262 (Fla. 2nd DCA 1989), disapproved of on other grounds, State v. Hernandez, 596 So.2d 671 (Fla.1992); see also Harris v. State, 418 So.2d 416 (Fla. 1st DCA 1982), review denied, 426 So.2d 26 (Fla.1983) (attempted lewd assault upon ......
  • Simmons v. State, No. 98-1010.
    • United States
    • Court of Appeal of Florida (US)
    • November 20, 1998
    ...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 ......
  • Petersen v. State, No. 93-1269
    • United States
    • Court of Appeal of Florida (US)
    • February 17, 1995
    ...present. A person can only be charged, convicted and sentenced for one act even though seen by more than one person. State v. Hernandez, 596 So.2d 671 (Fla.1992); Alfonso v. State, 633 So.2d 126 (Fla. 3d DCA REVERSED and REMANDED. DAUKSCH, J., concurs specially, with opinion. GRIFFIN, J., c......
  • Roberts v. State, No. 91-02998
    • United States
    • Court of Appeal of Florida (US)
    • June 25, 1993
    ...we agree that he can be charged for only the number of acts, not the number of victims. The Florida Supreme Court, in State v. Hernandez, 596 So.2d 671 (Fla.1992), held that the "number of distinct lewd acts should be determinative" of the number of allowable convictions. Hernandez, 596 So.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT