ALAIN CUPAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that while two convictions for lewd and lascivious touching of the victim violate double jeopardy, a conviction for forcing the victim to touch the defendant's genitals is a distinct act.
[1] A conviction for lewd or lascivious molestation based on touching the victim is distinct from a conviction for forcing or enticing the victim to touch the defendant's gen…
[2] Consecutive sentences for lewd or lascivious molestation convictions may violate double jeopardy principles when the acts are not legally distinct.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceAlain Cupas was convicted of three counts of lewd or lascivious molestation, involving touching the victim and forcing the victim to touch his genital…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Elements Of Proof cases and more on FLexlaw
Alain Cupas appeals the denial of a rule 3.800(a) motion, which we have treated as a rule 3.850 motion.1 Following a trial, Cupas was convicted of three counts of lewd or lascivious molestation in violation of section 800.04(5)(a), Florida Statutes (2007). Count I alleged he touched the victim’s breast or the clothing covering it; count II alleged he touched her genital area or the clothing covering it; and count III alleged that he forced or enticed the victim to touch his genitals or the clothing covering them. All of these touchings occurred in close temporal proximity in the *1175same place. For counts I and II, he received consecutive 15-year prison terms followed by 15 years on probation for count III. Cupas alleges the three convictions violate the prohibition against double jeopardy.
We agree that based on our recent decision in Webb v. State, 104 So.3d 1153 (Fla. 4th DCA 2012), Cupas could not be convicted and sentenced twice for lewd and lascivious touching of the victim. However, consistent with the decision in State v. Meshell, 2 So.3d 132 (Fla.2009), count III, which involved appellant forcing the victim to touch his penis, is a distinct act requiring a different element of proof. See Fla. Std. Jury Instr. (Crim.) 11.10(c). We agree with Sanders v. State, 101 So.3d 373 (Fla. 1st DCA 2012), that a person can violate the lewd or lascivious molestation “statute in two separate and distinct ways: 1) by touching the victim in the proscribed manner, or 2) by forcing or enticing the victim to touch the person in the proscribed manner.” 101 So.3d at 375. Although we certified conflict with Sanders in Webb, Webb did not involve the two distinct statutory acts, in contrast to the two acts in Sanders as well as the two acts in this case.
Accordingly, the circuit court’s order is reversed. On remand, the trial court is directed to vacate the conviction for count II and resentence Cupas.
WARNER, GROSS and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Graham v. State, 207 So. 3d 135 (Fla. 2016)…m v. State, 170 So. 3d 141 (Fla. 1st DCA 2015). The district court certified that its decision is in direct conflict with the decisions of the Fourth District Court of Appeal in Webb v. State, 104 So. 3d 1153 (Fla. 4th DCA 2012), and Cupas v. State, 109 So. 3d 1174 (Fla. 4th DCA 2013), on a question of law. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we approve the First District in the instant case and disapprove the decisions of the Fourth District. FACTS Petitione…1 / 2
-
Graham v. State, 170 So. 3d 141 (Fla. 1st DCA 2015)…of the victim’s buttocks, or the clothing covering them. For this reason, Graham’s multiple convictions for lewd or lascivious molestation do not violate double jeopardy. We recognize that this holding conflicts with the holdings in Cupas v. State, 109 So. 3d 1174 (Fla. 4th DCA 2013), and Webb v. State, 104 So. 3d 1153 (Fla. 4th DCA 2012); thus, we certify conflict with those decisions. Graham also asserts that the trial court erred when it prohibited defense counsel from cross-examining the victim and her m…
Authorities Cited
- State v. Meshell, 2 So. 3d 132 (Fla. 2009)
- Sharyon Sanders v. State, 101 So. 3d 373 (Fla. 1st DCA 2012)
- Webb v. State, 104 So. 3d 1153 (Fla. 4th DCA 2012)