STATE OF FLORIDA, PETITIONER,
v.
FRANCISCO HERNANDEZ, RESPONDENT
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The Florida Supreme Court held that a single act of lewd behavior committed in front of multiple children constitutes only one offense under Florida Statute § 800.04(3), not separate counts for each child witness. The decision reversed prior conflicting precedent and clarified that the number of distinct acts, not the number of witnesses, determines the number of allowable convictions.
No. A single lewd act committed in the presence of multiple children constitutes only one offense under Florida Statute § 800.04(3), regardless of how many children witnessed the conduct. The number of distinct lewd acts, not the number of witnesses or audience size, determines the number of allowable convictions.
[1] A single act of lewd behavior committed in the presence of multiple children constitutes only one offense under Florida Statute § 800.04(3).
[2] The number of convictions for committing a lewd act in the presence of a child is determined by the number of distinct lewd acts, not by the number of witnesses to the ac…
Previewing 2 of 3 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“the number of distinct lewd acts should be determinative. In this case Hernandez allegedly committed one lewd act, not two. The fact that two minor girls observed it does not make the single act two crimes.”
Establishes the holding that number of acts, not number of witnesses, determines the number of convictions.
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Join FLexlaw to unlock all legal intelligenceHernandez exposed himself, masturbated, and fondled the breasts of two minor girls (ages 10 and 11) during a single incident. The State charged him wi…
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McDONALD, Justice.
We review Hernandez v. State, 575 So. 2d 1321 (Fla. 4th DCA 1991), because it conflicts with Bergen v. State, 552 So. 2d 262 (Fla. 2d DCA 1989). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue we address is: When an individual commits a single act of lewd behavior in front of more than one child, can that person be charged with and convicted of a separate count of lewd act for each child present? We answer the question in the negative, approve the decision under review, and disapprove Bergen.
Two girls, ten and eleven years old, claimed that Hernandez exposed himself and masturbated in front of them and that he lifted up one of the girls’ shirt and fondled her breasts. The State charged Hernandez with one count of lewd assault by fondling a child’s breasts and two counts of lewd act by exposing himself and masturbating in front of the two girls. The jury convicted Hernandez on all three counts as charged.
On appeal the district court reversed Hernandez’ convictions and held, among other things,* that he could not be convict ed of and sentenced for two counts of lewd act based upon a single incident of improper behavior in front of two children. Bergen, on the other hand, allowed five convictions under subsection 800.04(3), Florida Statutes (1987), when the defendant masturbated in the presence of five children. We disagree with Bergen.
Section 800.04, Florida Statutes (1987), provides:
Any person who:
(1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner;
(2) Commits an act defined as sexual battery under s. 794.011(l)(h) upon any child under the age of 16 years; or (3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime proscribed by this section.
As observed in Lifka v. State, 530 So. 2d 371, 373 n. 1 (Fla. 1st DCA 1988):
One reason for charging assault under section 800.04(1) rather [than] a lewd act under section 800.04(3) may be that a charge of lewd assault focuses on the person assaulted so that a separate charge would lie as to each victim on both occasions, supporting a total of four felony charges; whereas a charge of committing a lewd act in the presence of a child focuses on the commission of the lewd act whether in the presence of one or more children, thus limiting the number of offenses that could be charged to one count for each separate incident.
The size of the audience or the number of witnesses should not determine the number of allowable convictions under subsection 800.04(3); rather, the number of distinct lewd acts should be determinative. In this case Hernandez allegedly committed one lewd act, not two. The fact that two minor girls observed it does not make the single act two crimes.
We believe that the legislature intended that a lewd act, though seen by more than one person, be one crime and subject to only one conviction. We approve the decision under review.
It is so ordered.
SHAW, C.J., and OVERTON, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. *
Hernandez has been granted a new trial, and thus we do not find it necessary to address the district court's handling of the instruction issue.
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Citator
Cited By (11 total)
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Eaddy v. State, 789 So. 2d 1093 (Fla. 4th DCA 2001)…The State contends that these two separate acts — • fondling the victim’s breasts and fondling the victim’s vagina — may be charged in two separate counts even though they occurred during a single episode. The State relies upon State v. Hernandez, 596 So. 2d 671 (Fla.1992), to support its position, but Hernandez is distinguishable. In determining whether a single act of lewd behavior for an audience of multiple victims justified charging one count for each victim, the Florida Supreme Court [*1095] held that…
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Belcher v. State, 646 So. 2d 231 (Fla. 5th DCA 1994)…e primary offenses were general intent crimes and the affirmative defense of voluntary intoxication applies only to specific intent crimes. See Bergen v. State, 552 So. 2d 262 (Fla. 2nd DCA 1989), disapproved of on other grounds, State v. Hernandez, 596 So. 2d 671 (Fla.1992); see also Harris v. State, 418 So. 2d 416 (Fla. 1st DCA 1982), review denied, 426 So. 2d 26 (Fla.1983) (attempted lewd assault upon a child is not a specific intent crime for which a jury instruction on defense of voluntary intoxication n…
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Jewell Roberts v. State, 620 So. 2d 1082 (Fla. 2d DCA 1993)…ur counts encompass one act, i.e., “exposing and/or touching and/or masturbating his penis.” Roberts argues and we agree that he can be charged for only the number of acts, not the number of victims. The Florida Supreme Court, in State v. Hernandez, 596 So. 2d 671 (Fla.1992), held that the “number of distinct lewd acts should be determinative” of the number of allowable convictions. Hernandez, 596 So. 2d at 672. The supreme court specifically disapproved of this court’s opinion in Bergen v. State, 552 So. 2d…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lifka v. State, 530 So. 2d 371 (Fla. 1st DCA 1988)
- Hernandez v. State, 575 So. 2d 1321 (Fla. 4th DCA 1991)
- Lealear J. Jackson v. State, 552 So. 2d 262 (Fla. 2d DCA 1989)