Wallis v. State, No. 88-847

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM; COBB; COBB
Citation548 So.2d 808,14 Fla. L. Weekly 2066
Parties14 Fla. L. Weekly 2066 Harold Eugene WALLIS, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 88-847
Decision Date07 September 1989

Page 808

548 So.2d 808
14 Fla. L. Weekly 2066
Harold Eugene WALLIS, Appellant,
v.
STATE of Florida, Appellee.
No. 88-847.
District Court of Appeal of Florida,
Fifth District.
Sept. 7, 1989.

Page 809

James B. Gibson, Public Defender, and Barbara L. Condon, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

The defendant was charged in one information (87-347) with three counts of sexual battery upon a child under 12 years of age (his stepdaughter M) in violation of section 794.011(2), Florida Statutes; in a second information (87-375) with one count of sexual battery upon a child under 12 years of age (his daughter F) in violation of section 794.011(2), Florida Statutes, and in a third information (87-376) with one count of sexual battery upon a child under 12 years of age (his daughter K) in violation of section 794.011(2), Florida Statutes. Upon the State's motion, the trial court consolidated the three cases for trial. Convicted and sentenced on all five charges, the defendant appeals, raising several issues.

The acts alleged and offenses charged in these three informations, were not "connected acts" or "related offenses" within the meaning of those terms in the rules permitting consolidation (Florida Rules of Criminal Procedure 3.151(a) & (b)) and it was error to consolidate these cases for trial. The acts charged in each information related to a different victim and an entirely separate and different factual event than that charged in each other information. The only relationship between the acts and offenses charged is that each relates to the same defendant and the same type of crime. Every defendant has a constitutional right to a fair trial on each criminal accusation without the prejudice that necessarily results from the consolidation for trial of criminal charges relating to separate factual events. See Paul v. State, 385 So.2d 1371 (Fla.1980), adopting the dissent in Paul v. State, 365 So.2d 1063, 1065 (Fla. 1st DCA 1979); State v. Williams, 453 So.2d 824 (Fla.1984). See also Finfrock v. State, 507 So.2d 1230 (Fla. 5th DCA 1987); Warren v. State, 475 So.2d 1027 (Fla. 1st DCA 1985); and Bundy v. State, 455 So.2d 330 (Fla.1984).

The informations in cases 87-375 and 87-376 charge a sexual battery on the particular child named by the defendant causing his hand or finger "to unite with or to penetrate" the victim's vagina. The second count in the information in case number 87-347 charged that the defendant "caused his finger to penetrate or have union with her vagina." [Emphasis added].

Section 794.011(1)(h), Florida Statutes, defines "sexual battery" as:

The term "sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object: ...

In Dorch v. State, 458 So.2d 357 (Fla. 1st DCA 1984), the court analyzed section 794.011(1)(h) (formerly 794.011(1)(f)), Florida Statutes, as encompassing three distinct classes of proscribed behavior:

firstly,...

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10 practice notes
  • Garcia v. State, No. 73648
    • United States
    • United States State Supreme Court of Florida
    • September 6, 1990
    ...So.2d at 825 (burglary and theft charges severed); Paul, 385 So.2d at 1372 (attempted sexual battery charges severed); Wallis v. State, 548 So.2d 808, 809 (Fla. 5th DCA 1989) (severance required in a multi-count case of sexual battery upon three children under the age of twelve); Jones v. S......
  • Roark v. State, No. 92-380
    • United States
    • Court of Appeal of Florida (US)
    • June 22, 1993
    ...to sever should be granted where offenses occurred at different times and places, involving different victims. In Wallis v. State, 548 So.2d 808 (Fla. 5th DCA1989), three informations, each alleging sexual battery upon a different child, were consolidated for trial. The three victims were s......
  • Graves v. State, No. 96-3856
    • United States
    • Court of Appeal of Florida (US)
    • November 26, 1997
    ...is clearly insufficient to support a charge of sexual battery"); Firkey v. State, 557 So.2d 582 (Fla. 4th DCA 1989); Wallis v. State, 548 So.2d 808 (Fla. 5th DCA 1989). It was not enough to convince the jury of a mere attempt, touching or The jury was erroneously instructed, however, that t......
  • Hammond v. State, No. 94-02262
    • United States
    • Court of Appeal of Florida (US)
    • September 22, 1995
    ...same school; but there is no episodic connection between the alleged offenses. The charges should have been severed. See Wallis v. State, 548 So.2d 808 (Fla. 5th DCA 1989); Ellis v. State, 534 So.2d 1234 (Fla. 2d DCA Finally, because retrial will be necessary in this case, we need not addre......
  • Request a trial to view additional results
10 cases
  • Garcia v. State, No. 73648
    • United States
    • United States State Supreme Court of Florida
    • September 6, 1990
    ...So.2d at 825 (burglary and theft charges severed); Paul, 385 So.2d at 1372 (attempted sexual battery charges severed); Wallis v. State, 548 So.2d 808, 809 (Fla. 5th DCA 1989) (severance required in a multi-count case of sexual battery upon three children under the age of twelve); Jones v. S......
  • Roark v. State, No. 92-380
    • United States
    • Court of Appeal of Florida (US)
    • June 22, 1993
    ...to sever should be granted where offenses occurred at different times and places, involving different victims. In Wallis v. State, 548 So.2d 808 (Fla. 5th DCA1989), three informations, each alleging sexual battery upon a different child, were consolidated for trial. The three victims were s......
  • Graves v. State, No. 96-3856
    • United States
    • Court of Appeal of Florida (US)
    • November 26, 1997
    ...is clearly insufficient to support a charge of sexual battery"); Firkey v. State, 557 So.2d 582 (Fla. 4th DCA 1989); Wallis v. State, 548 So.2d 808 (Fla. 5th DCA 1989). It was not enough to convince the jury of a mere attempt, touching or The jury was erroneously instructed, however, that t......
  • Hammond v. State, No. 94-02262
    • United States
    • Court of Appeal of Florida (US)
    • September 22, 1995
    ...same school; but there is no episodic connection between the alleged offenses. The charges should have been severed. See Wallis v. State, 548 So.2d 808 (Fla. 5th DCA 1989); Ellis v. State, 534 So.2d 1234 (Fla. 2d DCA Finally, because retrial will be necessary in this case, we need not addre......
  • Request a trial to view additional results

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