MICHAEL H. CHAPLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Chaplin was convicted of capital sexual battery and two counts of lewd and lascivious acts. The appellate court affirmed his conviction for capital sexual battery and count three (lewd act), but reversed his conviction for count two because the conduct underlying that count was the same conduct that formed the basis for the sexual battery conviction, making a double conviction improper.
The court affirmed Chaplin's conviction for capital sexual battery and count three lewd and lascivious act, but reversed his conviction for count two. A person cannot be convicted of lewd and lascivious acts under Florida Statutes § 800.04 for conduct that also constitutes sexual battery. For count three, because the statute provides penalties in the disjunctive, proof of one alternative act (exposure) suffices even though the indictment alleged acts in the conjunctive (exposure and solicitation).
[1] A conviction for lewd and lascivious act under section 800.04, Florida Statutes (1991), cannot stand when the conduct alleged also forms the basis for a sexual battery co…
[2] Where a statute provides for acts in the disjunctive and an indictment alleges those acts in the conjunctive, proof of one act is sufficient for conviction.
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Join FLexlaw to unlock all legal intelligence“One cannot be convicted for a lewd act under section 800.04, Florida Statutes (1991), concerning conduct that is also a sexual battery.”
Establishes the legal principle prohibiting double convictions for lewd acts based on conduct that constitutes sexual battery.
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Join FLexlaw to unlock all legal intelligenceMichael Chaplin was charged with capital sexual battery and two counts of lewd and lascivious acts. Count two involved conduct that was identical to t…
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ALTENBERND, Judge.
Michael H. Chaplin challenges his convictions for capital sexual battery and two counts of lewd and lascivious act. We affirm in part and reverse in part.
We affirm his conviction for capital sexual battery without discussion.
We reverse his conviction for lewd and lascivious act as charged in count two of the information because the conduct alleged in that count formed the basis for the sexual battery conviction. One cannot be convicted for a lewd act under section 800.-04, Florida Statutes (1991), concerning conduct that is also a sexual battery. See § 800.04, Fla.Stat. (1991); State v. Hightower, 509 So. 2d 1078, 1079 n. 4 (Fla.1987).
We affirm his conviction for lewd and lascivious act charged in count three of the information, which alleged that in November 1990, Mr. Chaplin
knowingly did commit a lewd and lascivious act in the presence of ... a child under the age of sixteen years, by willfully and knowingly exposing [his penis] to the view of [the child], and by soliciting and procuring [the child] to touch, feel or hold [his exposed penis], which act as stated was lewd and lascivious in the presence of said child....
The state presented sufficient evidence from which a jury could conclude that Mr. Chaplin knowingly exposed his penis to the child in a lewd and lascivious manner, but it produced no evidence that Mr. Chaplin solicited her to touch his penis. Mr. Chaplin contends that the trial court committed prejudicial error when it effectively amended the information, over defense objection, by deleting from the jury instructions the language that Mr. Chaplin had solicited the child to touch his exposed penis. See John son v. State, 190 So. 2d 811 (Fla. 4th DCA 1966), cert. denied, 196 So. 2d 926 (Fla.1967).
In Telfare v. State, 529 So. 2d 1278, 1280 (Fla. 2d 1988), we held that “[w]here a statute provides a penalty for acts in the disjunctive and the indictment alleged the acts in the conjunctive, proof of one act will suffice,” citing Booker v. State, 93 Fla. 211, 111 So. 476 (1927). Section 800.04(3) and (4) allege, in the disjunctive, the acts charged in count three in the conjunctive. Although the state failed to present any evidence that Mr. Chaplin solicited the child to touch his exposed penis, it did present sufficient evidence that he knowingly exposed his penis to her in a lewd manner. As such, we conclude that Mr. Chaplin was not prejudiced in his defense of the charge.
Accordingly, we affirm Mr. Chaplin’s convictions for capital sexual battery charged in count one of the information and lewd and lascivious act charged in count three. We reverse his conviction and sentence for lewd and lascivious act charged in count two of the information. We remand for resentencing on count three after preparation of a new sentencing scoresheet.
Affirmed in part, reversed in part, and remanded with directions.
RYDER, A.C.J., and HALL, J., concur.
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Jozens v. State, 649 So. 2d 322 (Fla. 1st DCA 1995)…1078, 1079 (Fla.1987). Under section 800.04(3), one cannot be convicted of a lewd and lascivious act committed upon a child under 12 years of age for conduct that also constitutes the crime of sexual battery under section 794.011. Chaplin v. State, 622 So. 2d 165 (Fla. 2d DCA 1993). In the instant case, the victim was less than 12 years of age. Any activity proscribed in section 794.011(l)(h), perpetrated upon a victim of less than twelve years of age necessarily constitutes the crime of sexual battery, purs…
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D.D.M. v. State, 662 So. 2d 384 (Fla. 5th DCA 1995)…hat D.D.M. committed the sexual battery because the adjudications of sexual battery and lewd act upon a child, when based upon the same conduct, are mutually exclusive. See State v. Hightower, 509 So. 2d 1078, 1079 n. 4 (Fla.1987); Chaplin v. State, 622 So. 2d 165 (Fla. 2d DCA 1993). Accord Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994); Walker v. State, 622 So. 2d 630 (Fla. 3d DCA 1993); Edwards v. State, 613 So. 2d 508 (Fla. 5th DCA 1993). Likewise, the crime of attempted sexual battery would be mutuall…
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McCONN v. State, 648 So. 2d 837 (Fla. 2d DCA 1995)…te her vagina. We held that this ongoing sexual assault could not be dissected into two sequential crimes. See also State v. Hightower, 509 So. 2d 1078 (Fla.1987) (sexual battery and lewd and lascivious act are mutually exclusive); Chaplin v. State, 622 So. 2d 165 (Fla. 2d DCA 1993) (same); State v. Colbert, 522 So. 2d 436 (Fla. 2d DCA 1988) (same), approved, 569 So. 2d 433 (Fla.1990). Unlike the offense of sexual battery, the offense of sexual activity does not necessarily bar a conviction for lewd and lasc…
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
- State v. Hightower, 509 So. 2d 1078 (Fla. 1987)
- Booker v. State, 93 Fla. 211 (Fla. 1927)
- Augustus Johnson, Jr. v. State, 190 So. 2d 811 (Fla. 4th DCA 1966)
- Battisti v. Staples, 196 So. 2d 926 (Fla. 1967)
- Bretti v. Turner, 196 So. 2d 926 (Fla. 1967)
- Telfare v. State, 529 So. 2d 1278 (Fla. 2d DCA 1988)