JOSE PULIDO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1990-09-25
No. 89-2238
Before HUBBART, FERGUSON and GODERICH, JJ.
566 So. 2d 1388 Florida District Court of Appeal, Third District (1990) Caution
Cited by 4 cases

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Synopsis

Jose Pulido appealed his convictions for sexual battery, attempted sexual battery, lewd and lascivious assault, and battery. The Florida Third District Court of Appeal affirmed most convictions but reversed one battery conviction for biting, finding it was a lesser-included act within a sexual battery charge and could not be separately punished.


Holding

The court affirmed convictions for three sexual batteries, attempted sexual battery, lewd and lascivious assault, and two battery convictions (choking and slapping), but reversed the battery conviction for biting because it constituted part of the physical force used in committing the sexual battery and could not be separately punished as a lesser-included offense.


Headnotes

[1] A police witness's reference to a complaining witness as the "victim" does not constitute vouching for the witness's credibility.

[2] Evidence of acts of violence committed against a witness by a third party is inadmissible if no showing is made as to its relevance to the case.

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Key Quotes

“The battery conviction for biting the victim, however, cannot stand because it was based on an act which was part and parcel of the "physical force and violence not likely to cause serious personal injury," § 794.011(5), Fla.Stat. (1987), which the defendant employed when committing one of the sexual batteries, and, accordingly, may not be separately punished apart from the aforesaid battery conviction.”

Establishes the core holding that the biting battery was a lesser-included act within sexual battery and could not be separately punished.

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Facts & Procedural History

Jose Pulido was convicted by jury of three counts of sexual battery, one count of attempted sexual battery, one count of lewd and lascivious assault, …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the defendant Jose Pulido from judgments of conviction and sentences for (a) three counts of sexual battery, (b) one count of attempted sexual battery, (c) one count of lewd and lascivious assault, and (d) three counts of battery, which were entered below upon an adverse jury verdict. We affirm in part and reverse in part.

First, we have no trouble in rejecting two of the defendant’s four points on appeal. The trial court plainly did not commit any error (a) in permitting various police witnesses to refer to the complaining witness in this case as the “victim,” inasmuch as such reference did not, as urged, constitute a vouching for the credibility of said complainant, see Turner v. State, 297 So. 2d 640 (Fla. 1st DCA 1974); cf. Tingle v. State, 536 So. 2d 202 (Fla.1988) (witness testified as to whether victim was telling the truth); Fuller v. State, 540 So. 2d 182 (Fla. 5th DCA 1989) (same), and (b) in precluding the defendant from cross examining the complaining witness as to acts of violence committed against said witness by her boy friend five months after the charged sexual assaults, inasmuch as no showing was made below as to how such evidence was relevant to this case, see Medina v. State, 466 So. 2d 1046, 1050 (Fla.1985); Washington v. State, 432 So. 2d 44, 47 (Fla.1983); Boshears v. State, 371 So. 2d 725 (Fla. 1st DCA 1979).

Second, we have had some pause with the trial court’s ruling allowing the complainant to testify that she “lost” her baby; she had previously testified that she was pregnant at the time of the charged sexual assaults. However, as defense counsel correctly noted at trial, “the victim testified she lost the baby, not that the baby was lost by this assault.” (T. 271) This being so, we think any error in admitting the above evidence was entirely harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); Heiney v. State, 447 So. 2d 210 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Smith v. State, 424 So. 2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983).

Finally, we conclude that the three sexual battery convictions, the attempted sexual battery conviction, the lewd and lascivious assault conviction, and the two battery convictions for choking and slapping the victim were all based on separate criminal acts, and, consequently, these convictions were properly entered .below. Andrews v. State, 533 So. 2d 841 (Fla. 5th DCA 1988), rev. denied, 542 So. 2d 1332 (Fla.1989); Hipp v. State, 509 So. 2d 1208 (Fla. 4th DCA 1987); Grunzel v. State, 484 So. 2d 97 (Fla. 1st DCA 1986); Duke v. State, 444 So. 2d 492 (Fla. 2d DCA), approved, 456 So. 2d 893 (Fla.1984). The battery conviction for biting the victim, however, cannot stand because it was based on an act which was part and parcel of the “physical force and violence not likely to cause serious personal injury,” § 794.011(5), Fla.Stat. (1987), which the defendant employed when committing one of the sexual batteries, and, accordingly, may not be separately punished apart from the aforesaid battery conviction. Compare Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA 1981); Cotton v. State, 395 So. 2d 1287, 1290 (Fla. 1st DCA 1981).

The final judgment of conviction and sentence for battery for biting the victim is, therefore, reversed, and the cause is remanded to the trial court with directions to discharge the defendant from said charge. The final judgments of conviction and sentences for three counts of sexual battery, one count of lewd and lascivious assault, one count of attempted sexual battery, and the remaining counts of battery are affirmed.

Affirmed; reversed in part and remanded.


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Citator

Cited By

  • Meshell v. State, 980 So. 2d 1169 (Fla. 5th DCA 2008)
    …, Schwenn v. State, 898 So. 2d 1130 (Fla. 4th DCA 2005), Saavedra v. State, 576 So. 2d 953 (Fla. 1st DCA 1991), approved on other grounds, 622 So. 2d 952 (Fla.1993), cert. denied, 510 U.S. 1080, 114 S.Ct. 901, 127 L.Ed.2d 93 (1994); Pulido v. State, 566 So. 2d 1388 (Fla. 3d DCA 1990); Grunzel v. State, 484 So. 2d 97 (Fla. 1st DCA 1986), Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986); Duke v. State, 444 So. 2d 492 (Fla. 2d DCA), approved on other grounds, 456 So. 2d 893 (Fla.1984); but cf. Newell v. State,…
  • Garcia v. State, 769 So. 2d 449 (Fla. 4th DCA 2000)
    …which could be classified as a battery, that act was an integral part of the sexual battery, since it prevented the victim from escaping and facilitated the subsequent act. Cf. Saavedra v. State, 576 So. 2d 953 (Fla. 1st DCA 1991); Pulido v. State, 566 So. 2d 1388, 1389 (Fla. 3d DCA 1990). We therefore affirm the conviction and sentence for sexual battery and vacate the conviction and sentence for battery. GROSS and HAZOURI, JJ., concur.…

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