EDWIN MURPHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court erred by failing to adjudicate and sentence on attempted sexual battery charge after convicting defendant of both attempted sexual battery and lewd or lascivious molestation; case remanded for proper adjudication.
A trial court must adjudicate and sentence a defendant on each conviction or adjudicate the defendant not guilty on legally sufficient grounds, and cannot simply refuse to act on a conviction.
[1] A trial court must adjudicate and sentence a defendant on each conviction or adjudicate not guilty on legally sufficient grounds and cannot refuse to act on a conviction.
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Join FLexlaw to unlock all legal intelligence“A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally sufficient reason. The trial court may not simply refuse to act.”
Court's statement of the legal standard for trial court obligations upon conviction.
Murphy was convicted of attempted sexual battery and lewd or lascivious molestation. At sentencing, Murphy moved to dismiss one conviction on double j…
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In this Anders1 appeal, Edwin Murphy’s pro se brief raises one meritorious issue. Following a trial, Murphy was convicted of attempted sexual battery and lewd or lascivious molestation. At his sentencing hearing, Murphy sought dismissal of one of the two convictions on double jeopardy grounds. The trial judge, while conceding that a double jeopardy issue might exist, declined to rule on Murphy’s motion. Instead, the court adjudicated Murphy guilty of lewd or lascivious molestation and sentenced him to prison, while taking no action on the attempted sexual battery charge. The State concedes this was error.
A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate ease, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally sufficient reason. The trial court may not simply refuse to act. State v. Houghtailing, 704 So.2d 163, 164 (Fla. 5th DCA 1997). Accordingly, we remand this matter to the trial court for the purpose of rendering an order with regard to the attempted sexual battery charge. If it is appropriate to adjudicate Murphy not guilty of that charge, it may do so. If not, it must adjudicate and sentence him for that crime.
REVERSED AND REMANDED.
COHEN, J., concurs.
GRIFFIN, J., concurs and concurs specially, with opinion.
concurring and concurring specially.
The trial court appeared to be uncertain about the double jeopardy issue in this case, which was understandable given the uncertain state of the law. Since this case was decided, however, the Florida Supreme Court issued its decision in State v. Meshell, 2 So.3d 132 (Fla.2009), which may inform the trial court’s decision on remand.
In this case, count one charged capital sexual battery, alleging that defendant’s penis had union with the victim’s vagina. Defendant was found guilty of attempted sexual battery, which means that defendant did some act in furtherance of the charged offense but failed to complete it. See § 777.04(1), Fla. Stat. (2008). Count three, which charged lewd or lascivious molestation of the same victim, alleged that defendant intentionally touched her genitals or the clothing covering her genitals. Unlike count one, count three did not *270allege that defendant used his penis, but alleged a lewd touching.
GRIFFIN, J.,
concurring and concurring specially.
The trial court appeared to be uncertain about the double jeopardy issue in this case, which was understandable given the uncertain state of the law. Since this case was decided, however, the Florida Supreme Court issued its decision in State v. Meshell, 2 So. 3d 132 (Fla.2009), which may inform the trial court’s decision on remand.
In this case, count one charged capital sexual battery, alleging that defendant’s penis had union with the victim’s vagina. Defendant was found guilty of attempted sexual battery, which means that defendant did some act in furtherance of the charged offense but failed to complete it. See § 777.04(1), Fla. Stat. (2008). Count three, which charged lewd or lascivious molestation of the same victim, alleged that defendant intentionally touched her genitals or the clothing covering her genitals. Unlike count one, count three did not allege that defendant used his penis, but alleged a lewd touching.
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Netrievae White v. State, 183 So. 3d 1168 (Fla. 4th DCA 2016)…g. We find no other trial error in the case, but we direct the circuit court to enter a judgment of acquittal as tó Count I, consistent with the court’s ruling at trial. See State v. Houghtailing, 704 So. 2d 163 (Fla. 5th DCA 1997); Murphy v. State, 16 So. 3d 269 (Fla. 5th DCA 2009). Affirmed in part, reversed in part, and remanded. . GROSS, GERBER and KLINGENSMITH, JJ., concur. . The jury instructions for the crime charged in this case state that the following three elements must be proven beyond a reaso…
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Murphy v. State, 49 So. 3d 295 (Fla. 5th DCA 2010)…or the purpose of rendering an order with regard to the attempted sexual battery charge. If it is appropriate to adjudicate Murphy not guilty of that charge, it may do so. If not, it must adjudicate and sentence him for that crime. Murphy v. State, 16 So. 3d 269 (Fla. 5th DCA 2009) (citations and footnote omitted). Judge Griffin concurred specially with the following opinion: The trial court appeared to be uncertain about the double jeopardy issue in this case, which was understandable given the uncertain…
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Covello v. State, 154 So. 3d 401 (Fla. 4th DCA 2014)…robbery count (invited by the State). Although the trial court did not sentence or adjudicate Co-vello on the home invasion robbeiy while masked charge, a court cannot avoid a double jeopardy issue by failing to act on a charge. See Murphy v. State, 16 So. 3d 269 (Fla. 5th DCA 2009) ("A trial court must adjudicate and sentence a defendant convicted of a crime, or in an appropriate case, adjudicate the defendant not guilty due to a lack of sufficient evidence to convict, double jeopardy, or any other legally…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Meshell, 2 So. 3d 132 (Fla. 2009)
- State v. Houghtailing, 704 So. 2d 163 (Fla. 5th DCA 1997)