MARCUS E. KARCHESKY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marcus Karchesky appeals his conviction on double jeopardy grounds, arguing he was improperly convicted of multiple overlapping sexual offenses arising from three separate sexual encounters with a 12-year-old child. The court affirmed convictions under the primary carnal intercourse statute but reversed convictions under two lesser-included sexual battery statutes, holding that only three separate crimes occurred despite nine counts.
The court held that under State v. Lanier, lewd assault and sexual battery offenses are necessarily lesser-included offenses of carnal intercourse charges when the victim is between 12 and 16 years old. Therefore, only three separate crimes (one for each act of intercourse) can be prosecuted, and the defendant can be convicted only under the primary carnal intercourse statute, not the lesser-included offenses.
[1] Lewd assault or act upon a child under sixteen is a necessarily lesser included offense of sexual battery when the victim is between twelve and sixteen years of age.
[2] Multiple convictions for lesser included offenses arising from a single act are impermissible under the Double Jeopardy Clause.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“lewd assault must be considered a necessarily lesser offense of section 794.011(5), sexual battery (with or without chastity and consent) in prosecutions where the victim is twelve to sixteen years of age”
Establishes the framework for determining lesser-included offenses applicable to this case
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Join FLexlaw to unlock all legal intelligenceOn three separate occasions in 1985, Karchesky engaged in sexual intercourse with his live-in girlfriend's 12-year-old daughter. For each act, he was …
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COWART, Judge.
Marcus E. Karchesky, defendant, appeals a final judgment and sentence claiming a violation of his constitutional guarantee against being placed in jeopardy twice for the same offense.
On October 13, 1985, defendant engaged in sexual intercourse with the twelve year old daughter of his live-in girlfriend. As a result of this single act of intercourse, defendant was charged with and convicted of section 794.05, Florida Statutes (1985) (carnal intercourse with an unmarried person under eighteen), section 800.04(2), Florida Statutes (1985) (commission of an act defined as sexual battery upon a child under sixteen), and section 800.04(1), Florida Statutes (1985) (lewd assault or act upon a child under sixteen).
As a result of two subsequent, separate and distinct acts of sexual intercourse with this same victim, the defendant was likewise charged and convicted of two more counts of section 794.05, two more counts of section 800.04(2), and two more counts of section 800.04(1).
In Young v. State, 506 So. 2d 13 (Fla. 5th DCA 1987), we reluctantly held that under State v. Lanier, 464 So. 2d 1192 (Fla.1985) lewd assault must be considered a necessarily lesser offense of section 794.011(5), sexual battery (with or without chastity and consent) in prosecutions where the victim is twelve to sixteen years of age. In the instant case, the victim was a child twelve years of age. Therefore, when the defendant was charged with sexual battery under section 794.05, Florida Statutes (1985) (carnal intercourse with an unmarried person under eighteen), the charges under section 800.04(1) and section 800.-04(2) were simply redundant as they were lesser included offenses of the charge of sexual battery, section 794.05.1
Therefore, because there were only three separate factual events and, under Lanier, only three crimes charged (although erroneously broken down into nine separate counts), there can be only three valid convictions for the three separate acts of sexual intercourse. We affirm the three convictions under section 794.05, Florida Statutes (1985) and reverse the three convictions under section 800.04(1), Florida Statutes (1985), and the three convictions under section 800.04(2), Florida Statutes (1985).
AFFIRMED IN PART; REVERSED IN PART.
DAUKSCH and COBB, JJ., concur. . State v. Hightower, 509 So. 2d 1078, (Fla.1987) holds that section 800.04 is not a lesser included offense of section 794.011(2). Hightower is distinguishable from this case because (1) the victim in Hightower was under 12 years old while the victim in this case was over 12 years old, and (2) here Karchesky is charged under section 794.05, which requires the victim be less than 18 years old, while in Hightower, the defendant was charged under section 794.011(2) which requires the victim be less than 12 years old.
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Karchesky v. State, 568 So. 2d 80 (Fla. 5th DCA 1990)…d initiated two previous appeals before this court (including appeal of his sentence), he never raised the issue of whether victim injury can be scored under section 794.05. Karchesky v. State, 534 So. 2d 413 (Fla. 5th DCA 1988); Karchesky v. State, 509 So. 2d 403 (Fla. 5th DCA 1987). We affirm. Before the victim injury points can be considered, Karchesky must first overcome the hurdle of whether Rule 3.800(a) is the proper vehicle for correction of his sentence. In his second appeal, he specifically appeale…
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Emilus Fenelon v. State, 629 So. 2d 955 (Fla. 4th DCA 1993)…victions and sentences are affirmed. CONVICTION AND SENTENCES AFFIRMED; COSTS OF PROSECUTION REVERSED. DELL, C.J., and GUNTHER, J., concur. . See § 794.041(2)(b), Fla.Stat. (1991). . See § 794.011(2), Fla.Stat. (1991). . See Karchesky v. State, 509 So. 2d 403 (Fla. 5th DCA 1987). . See Fla.R.Crim.P. 3.701(d)(7) (1986) (“Victim injury shall be scored if it is an element of any offenses at conviction.”). . Although the Thompson court mentions that the victim became pregnant and delivered a child in its a…
Authorities Cited
- State v. Hightower, 509 So. 2d 1078 (Fla. 1987)
- State v. Lanier, 464 So. 2d 1192 (Fla. 1985)
- Young v. State, 506 So. 2d 13 (Fla. 5th DCA 1987)