AUSENCIO RIOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ausencio Rios appealed the denial of his Rule 3.850 postconviction motion challenging his convictions for lewd and lascivious acts on a child. The court reversed and remanded, holding that the trial court's reliance solely on the amended information was insufficient to resolve his double jeopardy claim, which required evidence demonstrating temporal breaks between the alleged offenses.
Attachment of the amended information alone is insufficient to resolve a double jeopardy claim in a Rule 3.850 postconviction motion involving multiple lewd and lascivious offenses against the same victim. The trial court must either attach sufficient record evidence demonstrating that the acts occurred at different times or conduct an evidentiary hearing to determine whether a temporal break existed.
[1] Double jeopardy claims are properly the subject of postconviction relief.
[2] Attachment of an amended information alone is insufficient to conclusively refute a double jeopardy claim based on alleged lack of temporal break between offenses.
Previewing 2 of 4 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“While the lewd and lascivious offenses appear to have been based on different activity, it is impossible to state with certainty that all of them occurred at different times, since the trial court did not attach a trial transcript to its post-conviction order.”
Establishes the standard that trial courts must provide record evidence to support rulings on double jeopardy claims in postconviction proceedings
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Join FLexlaw to unlock all legal intelligenceRios was convicted of two counts of committing a lewd and lascivious act on a child under 16 and two counts of sexual activity with a child while in a…
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MONACO, J.
Ausencio Rios appeals the summary denial of his Rule 3.850 motion, in which he asserts a number of claims, only one of which has merit. Mr. Rios argued in his motion that his conviction of two counts of committing a lewd and lascivious act on a child under 16, and two counts of sexual activity with a child while in a position of familial or custodial authority should actually have only amounted to two offenses, and that the convictions violate the principles of double jeopardy because there was no temporal break alleged or proven as to each category of crime. The trial court disposed of the claim by attaching to the order denying relief a copy of the amended information under which Mr. Rios was tried. We conclude, however, that the attachment of the information was insufficient.
Double jeopardy claims are properly the subject of Rule 3.850 relief. See Wilson v. State, 693 So. 2d 616 (Fla. 2d DCA 1997). In Marshall v. State, 852 So. 2d 294 (Fla. 5th DCA 2003), the defendant argued in a postconviction proceeding that all three of his convictions for lewd and lascivious offenses should only have resulted in a single conviction because all three involved the same victim. We held in that case:
While the lewd and lascivious offenses appear to have been based on different activity, it is impossible to state with certainty that all of them occurred at different times, since the trial court did not attach a trial transcript to its post-conviction order. See King v. State, 834 So. 2d 311 (Fla. 5th DCA 2003)(holding that where two lewd acts involved the same victim and there was no meaningful temporal break in the episode, only one conviction is permitted under the double jeopardy clause). The trial court based its denial of the defendant’s double jeopardy claim on the wording of the information which it attached to its order. However, the information does not conclusively show that the alleged lewd and lascivious acts were committed at different times. Accordingly, we must remand this matter to the trial court with instructions to either attach sufficient record evidence which supports the conclusion that the acts were committed at different times or to hold an evidentiary hearing to determine whether it is necessary to vacate any of the convictions for lewd and lascivious acts as being double jeopardy violations.
Marshall, 852 So. 2d at 294-295. See also Jones v. State, 846 So. 2d 1224 (Fla. 2d DCA 2003).
Count I of the amended information in the present case alleged that Mr. Rios handled or fondled the breast of the victim “on divers days between the 1st day of August, 1996 and the 4th day of March, 1997,” while count II alleged that he fondled the vaginal area of the victim during the same seven month period. Counts III and IV alleged two varieties of sexual activity with the victim during the period from April 1, 1997, to October 7, 1998. As in Marshall, the attachment of only the amended information does not conclusively demonstrate that there was a temporal break between each of the offenses, such that Mr. Rios could be convicted and sentenced for two of each of the offenses.
Accordingly, we remand this matter to the trial court with directions either to attach the pertinent portions of the record to support its ruling, or to conduct an evidentiary hearing on the issues raised by the motion. See Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995). We otherwise affirm the order denying the other claims asserted by Mr. Rios in his Rule 3.850 motion.
AFFIRMED in part, REVERSED and REMANDED with instructions.
SAWAYA, C.J., and PETERSON, J., concur.
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Bradford B. Banks, Jr. v. State, 211 So. 3d 1104 (Fla. 5th DCA 2017)…irst correctly determined that Banks’s rule 3.850 motion was untimely and successive.2 Although “[djouble jeopardy claims are properly the subject of Rule 3.850 relief,” Dykes v. State, 200 So. 3d 162, 163 (Fla. 5th DCA 2016) (quoting Rios v. State, 889 So. 2d 940, 941 (Fla. 5th DCA 2004)), the two-year time requirement to file a rule 3.850 motion applies to double jeopardy issues raised in the motion. Sanders v. State, 621 So. 2d 723, 727 (Fla. 5th DCA 1993). The time for filing the motion pursuant to rule 3…
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Damion Dykes v. State, 200 So. 3d 162 (Fla. 5th DCA 2016)…0 motion for postconviction relief, in' grounds III and V, Dykes contends that convictions of all three offenses violate his protection against double jeopardy. “Double jeopardy claims are properly the subject of Rule 3.850 relief.” Rios v. State, 889 So. 2d 940, 941 (Fla. 5th DCA 2004) (citing Wilson v. State, 693 So. 2d 616 (Fla. 2d DCA 1997)). Recently, in Hankins v. State, 164 So. 3d 738, 738 (Fla. 5th DCA 2015), this Court concluded that “convictions for aggravated battery with a firearm and aggravated…
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Authorities Cited
- Oehling v. State, 659 So. 2d 1226 (Fla. 5th DCA 1995)
- Arlis R. Jones v. State, 846 So. 2d 1224 (Fla. 2d DCA 2003)
- King v. State, 834 So. 2d 311 (Fla. 5th DCA 2003)
- Wilson v. State, 693 So. 2d 616 (Fla. 2d DCA 1997)
- Marshall v. State, 852 So. 2d 294 (Fla. 5th DCA 2003)