DAVID PATRICK JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Patrick Johnson was convicted of burglary, sexual battery on a child under twelve, and lewd and lascivious molestation. The appellate court reversed the lewd and lascivious molestation conviction, finding it violated double jeopardy principles because it was based on the same conduct as the sexual battery conviction and lacked independent factual support.
The lewd and lascivious molestation conviction violates double jeopardy because it was perpetrated on the same victim at the same time and place during the same criminal episode as the sexual battery conviction. Additionally, the conviction lacks factual record support independent of the sexual battery offense. Accordingly, the conviction for lewd and lascivious molestation is reversed.
[1] Dual convictions for sexual battery and lewd or lascivious molestation violate double jeopardy principles when the offenses were perpetrated on the same victim, at the sa…
[2] A single sexual act cannot support convictions for both sexual battery and lewd and lascivious conduct.
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Join FLexlaw to unlock all legal intelligence“Johnson argues correctly that the lewd and lascivious conviction was entered in violation of double jeopardy principles because the offense of sexual battery and the offense of lewd and lascivious molestation were both perpetrated on the same victim, at the same time and place, during the same criminal episode.”
Establishes the core double jeopardy violation at issue
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Join FLexlaw to unlock all legal intelligenceJohnson entered a best interest guilty plea to three offenses committed against a nine-year-old female victim. The factual basis provided by the State…
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DAVIS, Judge.
David Patrick Johnson was convicted of burglary of a dwelling, sexual battery on a victim under twelve, and lewd and lascivious molestation. He challenges only his conviction and sentence for lewd and lascivious molestation, claiming that it was entered in violation of his right to be free from double jeopardy. Not only do we agree that the lewd and lascivious conviction violates double jeopardy, we also conclude that the conviction lacks factual record support. Accordingly, we reverse Johnson’s conviction for lewd and lascivious molestation.
Johnson entered a best interest guilty plea to burglary of a dwelling with assault or battery, sexual battery on a child under twelve while being under eighteen, and lewd and lascivious molestation. The State provided a factual basis for the offenses, which revealed that Johnson committed sexual battery by putting his penis inside the vagina of the nine-year-old female victim. The trial court adjudicated Johnson guilty of all three offenses. He was sentenced to life on the sexual battery charge and to a consecutive life sentence for the offense of burglary of a dwelling. The court imposed a concurrent sentence of fifteen years on the lewd and' lascivious molestation conviction.
Johnson argues correctly that the lewd and lascivious conviction was entered in violation-of double jeopardy principles because the offense of sexual battery and the offense of lewd and lascivious molestation were both perpetrated on the same victim, at the same time and place, during the same criminal episode.1 The State de-dines to address the double jeopardy issue but concedes that the lewd and lascivious conviction should be reversed or vacated due to the absence of a factual basis to support a conviction other than sexual battery. While we agree with the-State that the factual basis does not support any offense other than sexual battery, we also believe that the lewd and lascivious conviction must be vacated because it violates double jeopardy. See Tannihill v. State, 848 So. 2d 442, 444 (Fla. 4th DCA 2003); Rios v. State, 791 So. 2d 1208, 1210 (Fla. 5th DCA 2001); Banks v. State, 728 So. 2d 768 (Fla. 1st DCA 1999). We accordingly reverse the lewd and lascivious conviction.
Reversed.
FULMER, C.J., and WALLACE, J., Concur. . Although Johnson is raising this double jeopardy claim for the first time on appeal, this court has jurisdiction pursuant to Novaton v. State, 634 So. 2d 607, 609 (Fla.1994). Johnson entered an open plea. The error is apparent on the face of the record since the factual basis does not set forth any additional facts to support the lewd and lascivious con viction, and nothing in the record indicates that Johnson waived his right to raise a double jeopardy claim.
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Bertram L. Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007)…DCA 1983) (stating that “any intentional touching of another person against such person’s will is technically a criminal battery”). As a result of these facts, these two charges cannot be considered separate 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 convicti…
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Roughton v. State, 185 So. 3d 1207 (Fla. 2016)…ry) with § 794.01 l(l)(h), (2)(a), Fla. Stat. (2008) (sexual battery). . Berlin v. State, 72 So. 3d 284 (Fla. 1st DCA 2011); Smith v. State, 41 So. 3d 1041 (Fla. 1st DCA 2010); Robinson v. State, 919 So. 2d 623 (Fla. 2d DCA 2006); Johnson v. State, 913 So. 2d 1291 (Fla. 2d DCA 2005). .In Hightower, this Court found that under the 1984 amendment to section 800.04, which included the phrase “without committing the crime of sexual battery,” the crimes of sexual battery and lewd or lascivious conduct were "mutua…1 / 2
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Roughton v. State, 92 So. 3d 284 (Fla. 5th DCA 2012)…ct and constitute the same offense.”); Robinson v. State, 919 So. 2d 623, 623 (Fla. 2d DCA 2006) (holding double jeopardy principles preclude convictions for both sexual battery and lewd or lascivious molestation based on one act); Johnson v. State, 913 So. 2d 1291, 1291 (Fla. 2d DCA 2005). Here, there is no specific statement of legislative intent to have sexual battery and lewd or lascivious molestation punished separately when the two crimes arise from a single act. However, section 775.021(4)(a) establish…1 / 2
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Tannihill v. State, 848 So. 2d 442 (Fla. 4th DCA 2003)
- Rios v. State, 791 So. 2d 1208 (Fla. 5th DCA 2001)
- Eddie Lee Banks v. State, 728 So. 2d 768 (Fla. 1st DCA 1999)