State v. Paul
Decision Date | 22 June 2006 |
Docket Number | No. SC05656.,SC05656. |
Citation | 934 So.2d 1167 |
Parties | STATE of Florida, Petitioner, v. Steve PAUL, Respondent. |
Court | Florida Supreme Court |
Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Jeanine M. Germanowicz Assistant Attorney General, West Palm Beach, FL, for Petitioner.
Carey Haughwout, Public Defender and Ellen A. Griffin, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
We have for review the decision in Paul v. State, 912 So.2d 8 (Fla. 4th DCA 2005), which certified conflict with the decision in Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), review denied, 894 So.2d 970 (Fla.2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
Steve Paul was charged with committing six acts of lewd and lascivious offenses against a thirteen-year-old victim and was found guilty of four of the counts. Specifically, the jury found that Paul (1) intentionally touched the victim's genital area or the clothing covering it, contrary to section 800.04(5), Florida Statutes (1999); (2) intentionally touched the victim in a lewd or lascivious manner by kissing the victim's neck, contrary to section 800.04(6), Florida Statutes (1999); (3) intentionally touched the victim in a lewd or lascivious manner by rubbing his penis on the victim's stomach area, contrary to section 800.04(6), Florida Statutes (1999); and (4) intentionally exposed his genitals in a lewd or lascivious manner in the presence of the victim, contrary to section 800.04(7), Florida Statutes (1999). Paul appealed his convictions to the Fourth District Court of Appeal, contending that multiple convictions arising out of the same series of events violate state and federal double jeopardy protections.
Taking the evidence most favorable to the State, the district court succinctly summarized the facts adduced at trial as follows:
Paul came to the apartment of the thirteen-year-old male victim, where the victim's parents were asleep in their bedroom. They first went into the living room of the apartment. There, Paul kissed the victim on the neck and rubbed the outside of the victim's pants over his penis. Seeing that an adjoining bedroom was empty, Paul asked the victim if they could go into that room. They walked into the bedroom and shut the door. There, Paul proceeded to place his hand on the victim's penis underneath his clothing. The victim then removed his shorts, touched Paul's penis, and Paul rubbed his exposed penis over the victim's leg and stomach and ejaculated. At that point, the victim's sister and her boyfriend arrived.
Paul, 912 So.2d at 10. The Fourth District first held that the above incident was not a single criminal episode but actually consisted of two distinct acts. As the court noted, "where a defendant is charged with lewd and lascivious battery, the different acts of touching are to be viewed with reference to the spatial and temporal aspects of the surrounding circumstances in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between occurrences." Id. In applying this test to the defendant, the court found that two sexual offenses occurred: one in the living room and one in the bedroom. As the court elaborated, Id. at 11.
The Fourth District then addressed whether double jeopardy was violated when the defendant was convicted of two counts for each of these two separate criminal episodes. The State contended that double jeopardy protections were not violated because the Legislature had recently amended section 800.04 to create separate offenses for each of the acts committed. Paul, 912 So.2d at 11. The district court rejected this argument, holding that based on its reading of the statutory scheme of section 800.04, there was no legislative authorization for "separate convictions and sentences for each of the cumulative acts occurring in the course of one continuous and almost simultaneous act of lewd and lascivious activity on a minor, particularly where each lesser act leads up to the most serious of the charges." Id. Instead, the court deemed "the acts leading up to, or occurring as part of, the most serious, in each room, to be permissive lesser offenses." Id. However, the court noted that the Fifth District Court of Appeal took a contrary view regarding the recent amendments to section 800.04 when that court held that the amendment to the statute intended to authorize separate convictions and punishments for each subsection of section 800.04:
The language and structure of the amended statute does focus on individual acts and creates separate criminal offenses in each subsection that designates a specific degree of the crime and the punishment to be imposed for each. We conclude that the legislative intent is clear that separate punishments be imposed for each criminal offense created by the statute. Therefore, with respect to Hunsicker's convictions for the separate crimes of lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition, there is no double jeopardy violation.
Id. at 11-12 (quoting Hunsicker, 881 So.2d at 1171).
Determining whether double jeopardy is violated based on undisputed facts is a legal determination, and thus our standard of review is de novo. State v. Florida, 894 So.2d 941, 945 (Fla.2005). The Fifth Amendment guarantee against double jeopardy1 consists of three separate constitutional protections: North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also State v. Wilson, 680 So.2d 411, 413 (Fla.1996). As this Court has set forth:
The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature "intended to authorize separate punishments for the two crimes." M.P. v. State, 682 So.2d 79, 81 (Fla.1996); see State v. Anderson, 695 So.2d 309, 311 (Fla.1997) (). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger2 test, as codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist.
Gordon v. State, 780 So.2d 17, 19-20 (Fla. 2001) (footnote omitted); see also Gaber v. State, 684 So.2d 189, 192 (Fla.1996) () (footnote omitted).
In reviewing section 800.04, we do not find a clear statement of legislative intent, and thus we must employ the Blockburger test as codified in section 775.021, Florida Statutes (2005), to determine whether separate offenses exist. Section 775.021(4) provides:
(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
§ 775.021(4), Fla. Stat. (2005). The first portion of this test, section 775.021(4)(a), sets forth the Blockburger "same elements test," which prohibits courts from imposing multiple convictions for an act or acts which occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses. Section 775.021(4)(b) sets forth the exceptions to the Blockburger "same elements" test, providing three additional situations where dual convictions are barred. See Florida, 894 So.2d at 945 n. 2.
Because the Blockburger test applies to crimes occurring in only "one criminal transaction or episode," the first step is to review whether there was one criminal episode or multiple episodes.3 "In order to determine whether offenses occurred during a single criminal episode, courts look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a `temporal break' between offenses." Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2nd DCA 2002)); see also Russo v. State, 804 So.2d 419,...
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