CARL JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convictions for sexual battery and attempted sexual battery arising from a single criminal episode violate double jeopardy principles.
[1] A defendant may not be convicted of both a greater offense and its lesser included offense if both offenses were committed in the course of one criminal episode or transa…
[2] The determination of whether offenses arise from the same criminal episode requires consideration of whether separate victims are involved, whether the crimes occurred in…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of sexual battery and attempted sexual battery. The victim was attacked in the living room and then moved towards a bedroom be…
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HAZOURI, J.
Appellant, Carl Jenkins, was convicted of sexual battery without physical force, attempted sexual battery and battery. In his appeal from those convictions appellant presents two points, one of which has merit and is discussed below. In the other point appellant argues his counsel was ineffective. We affirm his appeal of that issue without prejudice for appellant to file a motion for ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850.
Appellant asserts that his convictions for sexual battery and attempted sexual battery violated double jeopardy because the two convictions arose out of a single episode. We agree with appellant’s argument and reverse his conviction for attempted sexual battery.
Attempted sexual battery is a lesser included offense of sexual battery. Under section 775.021(4)(b), Florida Statutes (2000), if one offense is a lesser included offense of another then a defendant may not be convicted of both if the offenses were committed in the course of one criminal episode or transaction. In Vasquez v. State, 778 So. 2d 1068 (Fla. 5th DCA 2001), the court set forth the test:
The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of the following factors: 1) whether separate victims are involved; 2) whether the crimes occurred in separate locations; and 3) whether there has been a temporal break between the incidents.
Id. at 1070.
In the instant case the appellant sexually battered the victim in her living room and then picked her up to carry her to a bedroom to continue the attack. Before entering the bedroom he dropped the victim and discontinued the attack. We find that this was one continuous offense and the attempted sexual battery was not separate from the sexual battery. Double jeopardy prohibits such multiple convictions.
We therefore affirm the conviction and sentence for sexual battery and vacate the conviction and sentence for attempted sexual battery.
POLEN, C.J., and MAY, J., concur.
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Citator
Cited By
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Bertram L. Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007)…2006) (holding that convictions for two counts of sexual battery did not violate double jeopardy; conversation between defendant and victim constituted a sufficient temporal break between the acts to allow for reflection). But see Jenkins v. State, 813 So. 2d 182 (Fla. 4th DCA 2002) (holding that defendant’s convictions for sexual battery and attempted sexual battery violated double jeopardy; his two convictions arose out of a single episode, where defendant sexually battered victim in her living room and th…
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Jeffry Schwenn v. State, 898 So. 2d 1130 (Fla. 4th DCA 2005)…her vagina. Because the events were almost simultaneous, we concluded that the defendant did not have time to reflect and form a new criminal intent between the two acts. Here, in contrast, each event was sequential to the others. Jenkins v. State, 813 So. 2d 182 (Fla. 4th DCA 2002), cited by Schwenn, is also distinguishable. Jenkins sexually battered the victim in her living room. He then picked her up to carry her to the bedroom to continue the attack but dropped her, discontinuing the attack. He was convi…
Authorities Cited
- Elliott Vasquez v. State, 778 So. 2d 1068 (Fla. 5th DCA 2001)