DAVID ALAN RUBIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying the appellant's motion to sever counts of sexual battery that were based on similar but separate episodes separated in time.
[1] Charges based on similar but separate episodes, separated in time, which are connected only by similar circumstances and the accused's alleged guilt in all instances, mus…
[2] Denial of a motion to sever charges based on similar but separate episodes separated in time is conclusively presumed to be prejudicial.
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Join FLexlaw to unlock all legal intelligenceAppellant was tried on eight counts of sexual battery against four victims on three different occasions. He moved to sever counts related to offenses …
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MOORE, Judge.
Rubin appeals his conviction on eight counts of sexual battery. Among the grounds alleged as error is, the claim that his motion to sever was erroneously denied by the trial court. We agree and reverse.
Appellant was tried on eight counts of sexual battery perpetrated against four different victims on three different occasions. Prior to trial, appellant moved to sever certain counts of his indictment, which pertained to alleged events occurring on October 21, 1979, from others which related to offenses allegedly committed on February 23, 1979, and yet others which allegedly occurred on June 9, 1979. The trial court denied this motion and the case proceeded to trial, culminating in appellant’s conviction on all counts.
Appellant contends that the denial of his motion to sever constitutes reversible error. We are bound to agree. This case is directly controlled by the Florida Supreme Court’s decision in Paul v. State, 385 So. 2d 1371 (Fla.1980) which adopted as its opinion the dissent of Judge Smith in Paul v. State, 365 So. 2d 1063, 1065-1067 (Fla. 1st DCA 1979). This decision makes clear that Rule 3.150, Florida Rules of Criminal Procedure, mandates severance, upon proper' motion, where criminal charges are:
[b]ased on similar but separate episodes, separated in time, which are “connected” only by similar circumstances and the accused’s alleged guilt in both or all instances.
365 So. 2d at 1065-1066.
It is clear that the situation discussed by Judge Smith is present here. The crimes with which appellant was charged, while all factually similar, comprised three distinct episodes, each separated by a considerable length of time. Therefore, the motion to sever should have been granted. Further, the prejudice to appellant resulting from the trial court’s denial of his motion is “conclusively presumed.” Macklin v. State, 395 So. 2d 1219 (Fla. 3d DCA 1981).
Therefore, this case is reversed and remanded for retrial consistent with this opinion.
REVERSED AND REMANDED, with directions.
LETTS, C. J., and DOWNEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Williams v. State, 409 So. 2d 253 (Fla. 4th DCA 1982)…believe that severance is required by the recent pronouncement of our Supreme Court in Paul v. State, 385 So. 2d 1371 (Fla.1980) (adopting part of the dissent of Judge Smith in Paul v. State, 365 So. 2d 1063 (Fla. 1st DCA 1979)). See Rubin v. State, 407 So. 2d 961 (Fla. 4th DCA 1981). As I view them, the charges in the present case are “[b]ased on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances.” See…
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Puhl v. State, 426 So. 2d 1226 (Fla. 4th DCA 1983)…t offenses may not be joined if they are not based on the same act or transaction or two or more connected acts or transactions and that a severance must be granted upon a timely motion if two or more offenses are improperly joined. Rubins v. State, 407 So. 2d 961 (Fla. 4th DCA 1982); Macklin v. State, 395 So. 2d 1219 (Fla. 3rd DCA 1981). Because of the overwhelming evidence of Puhl’s guilt on all charges, we considered the possibility of applying the harmless error doctrine to this case. However, the weight…
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Hoxter v. State, 553 So. 2d 785 (Fla. 1st DCA 1989)…d DCA 1981) (defendant charged with two taxicab holdups occurring five days apart); McMullen v. State, 405 So. 2d 479 (Fla. 3d [*787] DCA 1981) (defendant charged with five similar robberies occurring within nine days of each other); Rubin v. State, 407 So. 2d 961 (Fla. 4th DCA 1982) (defendant charged with eight counts of sexual battery perpetrated against four victims on three different occasions). The judgments of conviction and sentences are REVERSED and the case REMANDED for separate trials. SHIVERS, C…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Paul v. State, 365 So. 2d 1063 (Fla. 1st DCA 1979)
- Robles DEL MAR, Inc. v. Town OF Indian River Shores, 385 So. 2d 1371 (Fla. 1980)
- Paul v. State, 385 So. 2d 1371 (Fla. 1980)
- MacKlin v. State, 395 So. 2d 1219 (Fla. 3d DCA 1981)