PAUL T. NEWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convictions for attempted voluntary manslaughter with a weapon and aggravated battery with a deadly weapon do not violate double jeopardy, nor do convictions for two counts of sexual battery under the circumstances presented.
Appellant was convicted of attempted voluntary manslaughter with a weapon, aggravated battery with a deadly weapon, and sexual battery in two counts. …
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PER CURIAM.
The appellant, Paul Newell, asserts that the trial court violated the constitutional proscription against double jeopardy by convicting him of: (a) attempted voluntary manslaughter with a weapon, and aggravated battery with a deadly weapon; and (b) sexual battery in two different counts. We affirm.
The issue involving attempted voluntary manslaughter and aggravated battery is governed by the principles announced in State v. Florida, 894 So. 2d 941 (Fla.2005). The facts of the present case reflect that while the two offenses arose out of the same general act, they are separate offenses because they do not require identical elements of proof, are not degree variants of the same core offense, and aggravated battery with a deadly weapon is not always subsumed within the offense of attempted voluntary manslaughter. See § 775.021(4) Fla. Stat. (2001). See also Bradley v. State, 901 So. 2d 924 (Fla. 5th DCA 2005); Davis v. State, 892 So. 2d 1084 (Fla. 2d DCA 2004), review dismissed, 894 So. 2d 969 (Fla.2005); Gutierrez v. State, 860 So. 2d 1043 (Fla. 5th DCA 2003), review denied, 906 So. 2d 1058 (Fla.2005).
The issue involving the convictions for two counts of sexual battery is governed by the principles announced by this court in Cabrera v. State, 884 So. 2d 482 (Fla. 5th DCA 2004). There, we held that in order for crimes to be considered to have occurred in more than one criminal episode, there must be such a sufficient temporal break between the two acts as to allow the offender to reflect and form a new criminal intent for each offense. Here, the conversation between Mr. New-ell and the victim provided a temporal interval sufficient to allow for reflection, and double jeopardy is not offended. See also State v. Paul, 934 So. 2d 1167, 2006 WL 1699524 (Fla. June 22, 2006).
AFFIRMED.
THOMPSON, MONACO and EVANDER, JJ., concur.
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Bertram L. Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007)…of removing her pants and engaging in vaginal intercourse were separated by defendant’s acts of entering bathroom and removing his clothes, which provided a temporal break that allowed him to reflect and form a new criminal intent); Newell v. State, 935 So. 2d 83 (Fla. 5th DCA 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 Jenk…
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Meshell v. State, 980 So. 2d 1169 (Fla. 5th DCA 2008)…(Fla. 3d DCA 1990); Grunzel v. State, 484 So. 2d 97 (Fla. 1st DCA 1986), Begley v. State, 483 So. 2d 70 (Fla. 4th DCA 1986); Duke v. State, 444 So. 2d 492 (Fla. 2d DCA), approved on other grounds, 456 So. 2d 893 (Fla.1984); but cf. Newell v. State, 935 So. 2d 83, 84 (Fla. 5th DCA 2006) (“The issue involving the convictions for two counts of sexual battery is governed by the prineiple[ ] ... that in order for crimes to be considered to have occurred in more than one criminal episode, there must be such a suf…
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J.M. v. State, 4 So. 3d 703 (Fla. 5th DCA 2009)…ineffectual) conclusion of the trial judge that there was no meaningful spatial or temporal break during which J.M. could pause, reflect and form a new criminal intent. Compare King v. State, 834 So. 2d 311 (Fla. 5th DCA 2003), with Newell v. State, 935 So. 2d 83 (Fla. 5th DCA 2006).1 Accordingly, we reverse the disposition order and remand to the trial court with instructions to vacate one of the lewd or lascivious conduct convictions related to the victim V.R., and to resentence J.M. REVERSED and REMANDE…
Authorities Cited
- State v. Paul, 934 So. 2d 1167 (Fla. 2006)
- State v. Florida, 894 So. 2d 941 (Fla. 2005)
- Cabrera v. State, 884 So. 2d 482 (Fla. 5th DCA 2004)
- Gutierrez v. State, 860 So. 2d 1043 (Fla. 5th DCA 2003)
- Nasieve Bradley v. State, 901 So. 2d 924 (Fla. 5th DCA 2005)
- Davis v. State, 892 So. 2d 1084 (Fla. 2d DCA 2004)