GIL CANCEL COMAS, APPELLANT/CROSS APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS APPELLANT
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Gil Cancel Comas appealed his convictions for lewd or lascivious molestation and other offenses, raising ten issues, all without merit. The State cross-appealed the trial court's dismissal of a lewd or lascivious conduct conviction on double jeopardy grounds. The court affirmed Comas's convictions but reversed the dismissal of the conduct conviction, holding that distinct sexual offenses committed during the same criminal episode do not violate double jeopardy principles.
The court held that the trial court erred in dismissing the conviction for lewd or lascivious conduct on double jeopardy grounds. Multiple convictions for distinct sexual offenses committed by different actions during the same criminal episode do not violate double jeopardy principles, following the precedent established in State v. Meshell and Roberts v. State.
[1] Sexual acts of a separate character and type requiring different elements of proof are distinct criminal acts that warrant multiple punishments.
[2] Distinct acts of sexual battery do not require a temporal break between them to constitute separate crimes and do not violate double jeopardy.
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Join FLexlaw to unlock all legal intelligence“sexual acts of a separate character and type requiring different elements of proof, such as those proscribed in the sexual battery statute, are distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.”
Establishes the standard for determining when multiple sexual offense convictions do not violate double jeopardy principles
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Join FLexlaw to unlock all legal intelligenceAfter a jury trial, Comas was convicted of lewd or lascivious conduct and lewd or lascivious molestation, among other charges, based on distinct crimi…
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Gil Cancel Comas, Appellant, appeals his judgment and sentence for lewd or lascivious molestation, among other offenses. He raises ten issues on appeal, all of which are without merit. Accordingly, we affirm his judgment and sentence but write to address the State’s cross-appeal. On cross-appeal, the State argues that the trial court erred in dismissing Appellant’s conviction for lewd or lascivious conduct on double jeopardy grounds. We agree and reverse.
After a jury trial, Appellant was convicted of lewd or lascivious conduct and lewd or lascivious molestation, among other charges, based on distinct criminal acts that occurred within the same criminal episode. At the sentencing hearing, the trial court dismissed the lewd or lascivious conduct count because both convictions were “based on ... basically the same incident” in violation of double jeopardy principles.
In State v. Meshell, 2 So.3d 132, 135 (Fla.2009), the Florida Supreme Court held that “sexual acts of a separate character and type requiring different elements of proof, such as those proscribed in the sexual battery statute, are distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.” The Meshell court further held that “[distinct acts of sexual battery do not require a ‘temporal break’ between them to constitute separate crimes” and, as a result, do not violate double jeopardy. Id. at 134-36.
In Roberts v. State, 39 So.3d 372 (Fla. 1st DCA June 21, 2010), this Court applied Meshell to the lewd or lascivious molestation statute, holding as follows:
Considering the supreme court’s conclusion in Meshell that double jeopardy principles do not necessarily preclude multiple convictions for the same sexual offense committed by different actions during the same criminal episode, it necessarily follows that double jeopardy principles would not necessarily preclude convictions for two different sexual offenses committed by different actions during the same criminal episode.
Id. at 374. Based on this rationale, this Court concluded that the defendant’s convictions for sexual battery and lewd or lascivious molestation did not violate double jeopardy principles because the convictions were based on distinct criminal acts. Id.
As in Meshell and Roberts, Appellant’s convictions were based on distinct criminal *51acts that occurred in the same criminal episode. Therefore, the trial court erred in dismissing Appellant’s conviction for lewd or lascivious conduct on double jeopardy grounds. See Meshell, 2 So.3d at 134-36; Roberts, at 374. Accordingly, we reverse the trial court’s dismissal and remand with directions for the trial court to reinstate Appellant’s lewd or lascivious conduct conviction and for sentencing on this conviction. We otherwise affirm Appellant’s judgment and sentence on the remaining offenses.
AFFIRMED in part, REVERSED in part, and REMANDED.
WEBSTER, LEWIS, and ROBERTS, JJ., concur.
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Sharyon Sanders v. State, 101 So. 3d 373 (Fla. 1st DCA 2012)…tute, like the sexual battery statute, were of a separate character and type requiring different elements of proof and thus were distinct criminal acts, and punishment for such distinct acts did not violate double jeopardy); see also Comas v. State, 45 So. 3d 49 (Fla. 1st DCA 2010) (applying Meshell and Roberts and holding that double jeopardy did not bar convictions for lewd or lascivious molestation and lewd or lascivious conduct because even though the offenses were committed during “basically the same i…
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Achurra v. Achurra, 80 So. 3d 1080 (Fla. 1st DCA 2012)…issue was not preserved for appellate review, in that Mr. Achurra never brought this matter to the trial court to afford a reasonable opportunity to correct the deficiency. See Jonsson v. Dickinson, 46 So. 3d 1016 (Fla. 1st DCA 2010); Mize v. Mize, 45 So. 3d 49, 49 n. 1 (Fla. 1st DCA 2010); Owens v. Owens, 973 So. 2d 1169 (Fla. 1st DCA 2007). However, we can consider for the first time on appeal the “insufficiency of the evidence” issue. See Fla. R. Civ. P. 1.530(e); Welch v. Welch, 22 So. 3d 153, 154 (Fl…
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Badgley v. Sanchez, 165 So. 3d 742 (Fla. 4th DCA 2015)…2d 166, 168 (Fla. 5th DCA 1998))); see also Dorsett v. Dorsett, 902 So. 2d 947 (Fla. 4th DCA 2005) (citing Whe-lan and reversing due to judgment’s failure to make finding regarding value of assets, despite lack of transcript). But see Mize v. Mize, 45 So. 3d 49 (Fla. 1st DCA 2010) (refusing to reverse due to absence of findings required by statute where appellant failed to bring deficiency to attention of trial court); Mathieu v. Mathieu, 877 So. 2d 740 (Fla. 5th DCA 2004) (same); Esaw v. Esaw, 965 So. 2d…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Meshell, 2 So. 3d 132 (Fla. 2009)
- Arrie Frank Roberts, Jr. v. State, 39 So. 3d 372 (Fla. 1st DCA 2010)