LESTER BOLDING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bolding was convicted by jury of both lewd or lascivious battery and molestation. The trial court adjudicated him guilty only of battery but recorded the jury's guilty finding on molestation with adjudication withheld. The court reversed and remanded, holding that recording a guilty verdict without adjudication still violates the Double Jeopardy Clause because the statutory definition of conviction includes verdicts regardless of whether adjudication is withheld.
The court held that the Double Jeopardy Clause prohibition against multiple convictions for the same offense is violated even when a trial court withholds adjudication on one offense, because the statutory definition of conviction includes determinations of guilt from a trial regardless of whether adjudication is withheld. The proper remedy is to vacate the verdict of guilt as to one of the offenses.
[1] Legislative intent is the primary consideration in determining whether multiple convictions and sentences arising from the same criminal transaction are constitutional.
[2] When legislative intent is unclear, courts apply the Blockburger test to determine if multiple punishments are permissible for offenses arising from the same criminal tra…
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Join FLexlaw to unlock all legal intelligence“a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld”
The statutory definition of conviction that applies even when adjudication is withheld, thus triggering double jeopardy protections.
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Join FLexlaw to unlock all legal intelligenceA jury found Bolding guilty of both lewd or lascivious battery and lewd or lascivious molestation. The trial court adjudicated Bolding guilty of batte…
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Lester Bolding, Appellant, seeks review of a judgment and sentence entered after a jury found him guilty of both lewd or lascivious battery and lewd or lascivious molestation. The trial court adjudicated Appellant guilty of lewd or lascivious battery and sentenced him for that crime. Although the trial court agreed with Appellant that, under the facts of this case, it would violate the Double Jeopardy Clause to enter an adjudication of guilt as to lewd or lascivious molestation, the trial court noted on the judgment and sentence form that the jury found Appellant guilty of lewd or lascivious molestation. The trial court then ordered that adjudication of guilt for that offense be withheld. Appellant contends that this action violated the Double Jeopardy Clause. The State properly concedes error on this point. Accordingly, we affirm in part, reverse in part, and remand with instructions to the trial court to vacate the record of the jury’s determination that Appellant was guilty of lewd or lascivious molestation.
Under the Double Jeopardy Clause of both the Florida and the federal constitutions, a person may not be “subjected] to multiple prosecutions, convictions, and punishments for the same criminal offense.” Valdes v. State, 3 So.3d 1067, 1070 (Fla.2009); see U.S. Const, amend. V; Art. I, § 9, Fla. Const. The question before us is whether the jury’s finding of guilt as to the lewd or lascivious molestation charge constituted a conviction, such that the record of this finding on the judgment and sentence placed Appellant in double jeopardy. This issue may be settled by reference to the statutory definition of “conviction.” Section 921.0021, Florida Statutes (2008), defines “conviction” as “a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.” Thus, the constitutional prohibition against multiple convictions for the same criminal offense is violated even when a trial court adjudicates the defendant guilty of one offense and withholds adjudication of guilt as to the other offense. When a jury finds a defendant guilty of two offenses, and the defendant cannot be adjudicated guilty of both due to the constitutional prohibition against double jeopardy, the proper remedy is to vacate the verdict of guilt as to one of the offenses. Werhan v. State, 673 So.2d 550, 553 (Fla. 1st DCA 1996). A double jeopardy violation is not rendered harmless simply because the defendant is not sentenced for both of the convictions or because they were not both scored on the guidelines scoresheet. Id. Accordingly, we hold that the trial court committed harmful error when it declined to vacate the jury verdict as to the lewd or lascivious *958molestation charge. For this reason, although the conviction and sentence for lewd or lascivious battery remain undisturbed, we must reverse and remand for vacation of the conviction for lewd or lascivious molestation.
AFFIRMED in part; REVERSED in part; and REMANDED with instructions.
LEWIS, THOMAS, and WETHERELL, JJ., concur.
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Ivey v. State, 47 So. 3d 908 (Fla. 3d DCA 2010)…iving more than a single punishment for the same crime. Robinson v. State, 901 So. 2d 1027, 1028 (Fla. 4th DCA 2005). Thus, withholding the sentence on one of the two convictions does not ameliorate a double jeopardy violation. See Bolding v. State, 28 So. 3d 956 (Fla. 1st DCA 2010); Rodriguez v. State, 875 So. 2d 642 (Fla. 2d DCA 2004). There is no constitutional prohibition, however, against multiple punishments for different offenses arising from the same criminal episode where the Legislature authorizes…
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Newton W. McLEOD v. State, 52 So. 3d 784 (Fla. 5th DCA 2010)…nt guilty of counts four and five, and the court expressly stated that the counts were set aside due to double jeopardy considerations. By setting aside the jury verdicts, the court vacated the verdicts on counts four and five. See Bolding v. State, 28 So. 3d 956, 957 (Fla. 1st DCA 2010). The defendant also argues that the sentence imposed for his conviction on count one, attempted second degree murder with a firearm, is illegal. He maintains that the maximum sentence that could be imposed on count one was…
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Roughton v. State, 92 So. 3d 284 (Fla. 5th DCA 2012)…s. . Although the trial court adjudicated Mr. Roughton guilty of lewd or lascivious molestation, it failed to impose a sentence. Withholding the sentence on one of the two convictions does not cure a double jeopardy violation. See Bolding v. State, 28 So. 3d 956 (Fla. 1st DCA 2010). . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). .Section 775.021(4)(a), Florida Statutes (2008), states: Whoever, in the course of one criminal transaction or episode, commits an act or acts w…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eli Enrique Valdes v. State, 3 So. 3d 1067 (Fla. 2009)
- Werhan v. State, 673 So. 2d 550 (Fla. 1st DCA 1996)