MICHAEL TANNIHILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Michael Tannihill was convicted of sexual battery with slight force and lewd or lascivious battery based on the same act of oral penetration. The appellate court affirmed his convictions on most issues but reversed his lewd or lascivious battery conviction due to double jeopardy concerns and remanded for resentencing, while also ordering correction of his sentencing scoresheet.
The court affirmed the trial court's overruling of the prosecutor's closing argument objection as a fair response to defense counsel's arguments. The court upheld both the prison releasee reoffender and habitual violent felony sentences as not violating Apprendi. However, the court held that the convictions for both sexual battery with slight force and lewd or lascivious battery based on the same act of oral penetration violated Tannihill's right against double jeopardy, and the court ordered reversal of the lewd or lascivious battery conviction and remanded for resentencing.
[1] A prosecutor's closing argument comment is permissible as a fair response to a defense counsel's suggestion that a victim's tears were not genuine.
[2] A prison releasee reoffender sentence does not violate Apprendi v. …
Previewing 2 of 6 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“Appellant correctly argues, and the state agrees, that his convictions for both sexual battery with slight force and lewd and lascivious battery based on the same act of oral penetration or union violate his right against double jeopardy.”
Establishes the court's holding that dual convictions for the same act violate double jeopardy protection
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTannihill was charged with four counts: sexual battery with threatened use of a deadly weapon on a child (anal sex), sexual battery with threatened us…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Lewd Or Lascivious Battery cases and more on FLexlaw
SHAHOOD, J.
Appellant, Michael Tannihill, was convicted of sexual battery with slight force and lewd or lascivious battery, based on the same act of oral penetration or union. We affirm in part and reverse in part.
Appellant raises five issues on appeal. We affirm on three of those issues and reverse and remand for resentencing on the remaining issues.
Appellant’s first issue, that the trial court erred in overruling his objection to the prosecutor’s closing argument, is affirmed pursuant to Austin v. State, 700 So. 2d 1233 (Fla. 4th DCA 1997). We find that the prosecutor’s comment was a fair response to defense counsel’s suggestion that the victim’s tears during his testimony were not genuine.
Next, we hold that appellant’s prison releasee reoffender sentence is not in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), see McDowell v. State, 789 So. 2d 956 (Fla.2001), and that his habitual violent felony sentence does not violate Apprendi. See Gordon v. State, 787 So. 2d 892 (Fla. 4th DCA 2001). These issues have been thoroughly addressed and resolved by this court in prior opinions; therefore, we will forego extensive discussion here.
We next address the double jeopardy issue raised by appellant. Appellant correctly argues, and the state agrees, that his convictions for both sexual battery with slight force and lewd and lascivious battery based on the same act of oral penetration or union violate his right against double jeopardy. See Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994). Contrary to the state’s assertions that the issue has been waived, a violation of double jeopardy is a fundamental error which can be raised for the first time on appeal. See Haynes v. State, 828 So. 2d 457, 458 (Fla. 4th DCA 2002); see also Rios v. State, 791 So. 2d 1208 (Fla. 5th DCA 2001)(convictions for sexual battery and lewd and lascivious act reversed based on double jeopardy even though appellant did not object to the sentencing error and did not raise the issue in a motion to correct sentence).
Finally, appellant also argues that his scoresheet is inaccurate because it includes points for two counts of penetration instead of one. He was charged with and tried for sexual battery — threatened use of a deadly weapon on a child (anal sex)(count I), sexual battery — threatened use of a deadly weapon on a child (oral sex)(count II), lewd or lascivious battery on a child (anal sex)(count III), and lewd or lascivious battery on a child (oral sex)(count IV). The jury acquitted him of all charges involving anal sex and convicted him of only those offenses involving a single act of oral sex.
The state does not deny the scoresheet contains an error, but argues that any error is irrelevant because appellant was not sentenced according to the scoresheet, but rather, was sentenced as a prison re-leasee reoffender and habitual violent felony offender. See, e.g., Arce v. State, 762 So. 2d 1003 (Fla. 4th DCA 2000)(holding that a habitual offender sentence is not subject to the sentencing guidelines; therefore, appellant not entitled to relief pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000)). But for the fact that appellant’s conviction for lewd and lascivious act must be reversed and appellant must be resentenced, we would agree with the state that the error is irrelevant. On remand and resentencing, however, the error may be relevant; therefore, appellant’s score-sheet should be corrected to reflect only 80 additional points for one count of sexual penetration.
Accordingly, we reverse appellant’s conviction for lewd and lascivious act and remand for resentencing. On all other issues, we affirm.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RE-SENTENCING.
KLEIN and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
-
Leighton Binns v. State, 979 So. 2d 439 (Fla. 4th DCA 2008)…on, so the standard of review is de novo. State v. Florida, 894 So. 2d 941, 945 (Fla.2005). The issue could have been raised by appellate counsel for the first time on appeal despite the lack of an objection on this ground below. Tannihill v. State, 848 So. 2d 442, 444 (Fla. 4th DCA 2003) (reversing convictions for both sexual battery and lewd and lascivious battery based on the same act as violating double jeopardy and explaining that double jeopardy violation is fundamental error that can be raised for the…
-
Bertram L. Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007)…ate offenses. See generally Johnson v. State, 913 So. 2d 1291 (Fla. 2d DCA 2005) (finding that conviction for sexual battery and lewd and lascivious molestation that arose out of single act constituted double jeopardy violation); Tannihill v. State, 848 So. 2d 442 (Fla. 4th DCA 2003) (determining that convictions for sexual battery and lewd [*961] and lascivious battery, based on same act, constituted double jeopardy violation). But see Darville v. State, 912 So. 2d 63 (Fla. 4th DCA 2005) (upholding defendant…
-
DeLUISE v. State, 72 So. 3d 248 (Fla. 4th DCA 2011)…his conviction for grand theft in Count 13 violates double jeopardy. We agree. Because a conviction that violates double jeopardy constitutes fundamental error, a double jeopardy claim may be raised for the first time on appeal. Tannihill v. State, 848 So. 2d 442, 444 (Fla. 4th DCA 2003). Where two offenses arise out of the same factual event, the test for double jeopardy is whether each offense contains an essential element that the other lacks. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct.…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Arce v. State, 762 So. 2d 1003 (Fla. 4th DCA 2000)
- Gordon v. State, 787 So. 2d 892 (Fla. 4th DCA 2001)
- McDOWELL v. State, 789 So. 2d 956 (Fla. 2001)
- Austin v. State, 700 So. 2d 1233 (Fla. 4th DCA 1997)
- D & D Hotdogs & Beef, Inc. v. Plantation Fountains Assocs. Ltd. P'ship, 634 So. 2d 714 (Fla. 4th DCA 1994)
- Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994)
- Rios v. State, 791 So. 2d 1208 (Fla. 5th DCA 2001)
- Haynes v. State, 828 So. 2d 457 (Fla. 4th DCA 2002)