AARON BERLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Aaron Berlin was convicted of two counts of sexual battery and one count of lewd or lascivious molestation, all arising from the same criminal episode. The Florida District Court of Appeal reversed the lewd or lascivious molestation conviction as a double jeopardy violation while affirming the sexual battery convictions.
The court held that the dual convictions for sexual battery and lewd or lascivious molestation constitute double jeopardy. While it was proper to convict on two counts of sexual battery for the two separate acts of touching, the conviction for lewd or lascivious molestation was improper because it was based on the same conduct without a separate act.
[1] Dual convictions for capital sexual battery and lewd or lascivious molestation based on a single act do not violate the constitutional prohibition against double jeopardy…
[2] Separate punishments for offenses committed in the course of one criminal transaction or episode do not violate double jeopardy if the Legislature intended to authorize s…
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Join FLexlaw to unlock all legal intelligence“the trial court's decision to enter a judgment against Appellant for both counts of sexual battery and lewd or lascivious molestation, when only two acts of touching were alleged, constituted double jeopardy”
Establishes the core holding that multiple convictions based on the same conduct violate double jeopardy
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Join FLexlaw to unlock all legal intelligenceBerlin committed two separate acts of penetration against a child victim during a single criminal episode: penetration of the victim's vagina with his…
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Appellant, Aaron Berlin, appeals his judgments and sentences for two counts of sexual battery on a person less than twelve years of age and one count of lewd or lascivious molestation. He raises two issues on appeal, only one of which merits discussion. Specifically, Appellant argues that because his two convictions for sexual battery and one conviction for lewd or lascivious molestation arise from two criminal acts committed in the same criminal episode, the convictions for both counts of sexual battery and lewd or lascivious molestation violate double jeopardy. The State properly concedes error. We agree that the dual convictions constitute double jeopardy. Consequently, we reverse the conviction for lewd or lascivious molestation, while affirming his convictions for sexual battery.
All three offenses at issue occurred during the same criminal episode. The first count of sexual battery was based on Appellant’s union with or penetration of the child victim’s vagina with his penis, and the second count was based on his union with or penetration of the child victim’s anus with his penis. There was not a separate act that formed the basis for the lewd or lascivious molestation charge, as the State candidly conceded in its closing argument. The jury found Appellant guilty as charged on all counts, and he was sentenced to concurrent terms of life imprisonment on each count. Appellant filed a motion to correct illegal sentence arguing that his conviction and sentence for lewd or lascivious molestation violated the double jeopardy doctrine. The trial court denied the motion. We review this issue de novo. State v. Paul, 934 So.2d 1167, 1171 (Fla.2006) (receded from on other grounds in Valdes v. State, 3 So.3d 1067, 1077 (Fla.2009)).
This Court has already held that the criminal acts prohibited by sections *285794.011(2)(a) (sexual battery) and 800.04(5) (lewd or lascivious molestation), Florida Statutes (2008), constitute the same offense under the Blockburger 1 test when they arise from a single criminal act. Smith v. State, 41 So.3d 1041, 1043 (Fla. 1st DCA 2010). Here, the three offenses charged arise from two criminal acts of touching or penetration committed within a single criminal episode. It was not improper for the trial court to adjudicate Appellant guilty of two counts of sexual battery for the separate acts of touching the victim’s vagina with his penis and of touching the victim’s anus with his penis. State v. Meshell, 2 So.3d 132, 135 (Fla.2009). However, the trial court’s decision to enter a judgment against Appellant for both counts of sexual battery and lewd or lascivious molestation, when' only two acts of touching were alleged, constituted double jeopardy. Therefore, we affirm Appellant’s convictions and sentences for sexual battery but reverse the conviction for lewd or lascivious molestation and remand to the trial court to vacate that conviction.
AFFIRMED in part; REVERSED in part; and REMANDED with instructions.
WOLF, LEWIS, and RAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Roughton v. State, 185 So. 3d 1207 (Fla. 2016)…d in the same manner as the conduct at issue here under the sexual battery statute. Compare § 800.04(l)(a), (4)(a), Fla. Stat. (2003) (lewd or lascivious battery) with § 794.01 l(l)(h), (2)(a), Fla. Stat. (2008) (sexual battery). . Berlin v. State, 72 So. 3d 284 (Fla. 1st DCA 2011); Smith v. State, 41 So. 3d 1041 (Fla. 1st DCA 2010); Robinson v. State, 919 So. 2d 623 (Fla. 2d DCA 2006); Johnson v. State, 913 So. 2d 1291 (Fla. 2d DCA 2005). .In Hightower, this Court found that under the 1984 amendment to se…1 / 2
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Roughton v. State, 92 So. 3d 284 (Fla. 5th DCA 2012)…iction, and vice versa.”). Conversely, the First and Second District Courts both hold that convictions of sexual battery and lewd or lascivious molestation arising from the same criminal act are barred by double jeopardy. See, e.g., Berlin v. State, 72 So. 3d 284, 284-85 (Fla. 1st DCA 2011); Smith v. State, 41 So. 3d 1041, 1043 (Fla. 1st DCA 2010) (“Lewd or lascivious molestation requires proof of an intentional touching of certain body parts, and sexual battery requires proof of penetration or union with th…1 / 2
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Drawdy v. State, 98 So. 3d 165 (Fla. 2d DCA 2012)…e act of placing his mouth on the victim’s penis. 92 So. 3d 284, 285-87 (Fla. 5th DCA 2012) (certifying direct conflict with Robinson v. State, 919 So. 2d 623 (Fla. 2d DCA 2006); Johnson v. State, 913 So. 2d 1291 (Fla. 2d DCA 2005); Berlin v. State, 72 So. 3d 284 (Fla. 1st DCA 2011); and Smith v. State, 41 So. 3d 1041 (Fla. 1st DCA 2010)). We disagree with Roberts, Murphy, and Roughton. We agree, instead, with the First District’s reasoning in Beahr that, while sexual battery includes an element not include…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Eli Enrique Valdes v. State, 3 So. 3d 1067 (Fla. 2009)
- State v. Paul, 934 So. 2d 1167 (Fla. 2006)
- State v. Meshell, 2 So. 3d 132 (Fla. 2009)
- Smith v. State, 41 So. 3d 1041 (Fla. 1st DCA 2010)