J.M., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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J.M., a minor, was adjudicated delinquent for six offenses including two counts of lewd or lascivious conduct against the same victim on a school bus. The appellate court reversed, finding the two convictions violated double jeopardy principles because the touching involved the same victim with no meaningful spatial or temporal break allowing for formation of new criminal intent.
The two convictions for lewd or lascivious conduct violate double jeopardy because there was no meaningful spatial or temporal break during which J.M. could pause, reflect, and form new criminal intent. The trial court's failure to rule on the motion within 30 days resulted in a deemed denial by operation of rule, but the appellate court exercises its authority to reverse and remand for vacation of one conviction.
[1] A trial court's failure to rule on a motion within the time prescribed by rule results in the motion being deemed denied.
[2] Double jeopardy principles prohibit multiple convictions for the same offense arising from a single course of conduct without a meaningful spatial or temporal break.
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Join FLexlaw to unlock all legal intelligence“The touching involved the same victim and both incidents occurred sequentially on the school bus. We agree with the final (albeit 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.”
Establishes the court's double jeopardy analysis and the key factors distinguishing permissible from impermissible multiple convictions.
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Join FLexlaw to unlock all legal intelligenceJ.M. committed six offenses during an incident on a school bus, including two counts of lewd or lascivious conduct with respect to victim V.R. Both in…
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The appellant, J.M., appeals a disposition order entered at the conclusion of a delinquency procedure. The trial court found that J.M. had committed six offenses growing out of an incident on a school bus, two of which involved lewd or lascivious conduct with respect to a person designated V.R. J.M. argues on appeal that the convictions for these two counts violate double jeopardy. We agree, as did the trial judge.
The problem is that although J.M. timely filed a motion to correct the disposition order pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), the trial court did not act on the order for forty days. When the trial court did attempt to take action, it agreed with J.M.’s double jeopardy argument. Unfortunately, rule 8.135(b)(1)(B) requires the trial court to “file an order ruling on the motion” within 30 days, failing which “the motion shall be deemed denied.” Thus, although the trial court attempted to grant the motion, it was denied by virtue of the passage of time.
We, of course, reverse. The touching involved the same victim and both incidents occurred sequentially on the school bus. We agree with the final (albeit 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 REMANDED with INSTRUCTIONS.
GRIFFIN and COHEN, JJ., concur.
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Drawdy v. State, 98 So. 3d 165 (Fla. 2d DCA 2012)…2) (holding double jeopardy principles permitted only one lewd or lascivious act conviction per episode for virtually simultaneous touching of girl’s breasts and buttocks in first episode and her breasts and vagina in second episode); J.M. v. State, 4 So. 3d 703 (Fla. 5th DCA 2009) (holding two acts of lewd or lascivious conduct in one episode were one offense). But see Comas v. State, 45 So. 3d 49, 50-51 (Fla. 1st DCA 2010), review denied, 59 So. 3d 107 (Fla. Mar. 18, 2011) (table decision) (citing Meshell…
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Manetta v. State, 81 So. 3d 560 (Fla. 3d DCA 2012)…s multiple charges alleging separate, but closely related acts of sexual abuse under section 800.4(l)(a), Florida Statute, to the present prosecutions under section 800.4(5)(c). But cf. Brown v. State, 25 So. 3d 78 (Fla. 2d DCA 2009); J.M. v. State, 4 So. 3d 703 (Fla. 5th DCA 2009); Cabanela v. State, 871 So. 2d 279 (Fla. 3d DCA 2004).…
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A.R. v. State, 27 So. 3d 774 (Fla. 2d DCA 2010)…amended orders are nullities. See O.H. v. State, 948 So. 2d 79 (Fla. 2d DCA 2007) (holding that an order granting relief on a motion to correct disposition error entered more than thirty days after the motion was filed is a nullity); J.M. v. State, 4 So. 3d 703, 704 (Fla. 5th DCA 2009) (“[R]ule 8.135(b)(1)(B) requires the trial court to ‘file an order ruling on the motion’ within 30 days, failing which ‘the motion shall be deemed denied.’ ”). Accordingly, we reverse the original disposition order and reman…
Authorities Cited
- State v. Meshell, 2 So. 3d 132 (Fla. 2009)
- King v. State, 834 So. 2d 311 (Fla. 5th DCA 2003)
- Newell v. State, 935 So. 2d 83 (Fla. 5th DCA 2006)
- Cummings v. Miami-Dade Water & Sewer Dep't, 980 So. 2d 1169 (Fla. 3d DCA 2008)
- Meshell v. State, 980 So. 2d 1169 (Fla. 5th DCA 2008)