THOMAS HILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Hill appealed his convictions for sexual battery by person in a position of familial or custodial authority and lewd or lascivious battery, arguing they violated the double jeopardy clause because they arose from a single sexual act. The First District Court of Appeal reversed the conviction for lewd or lascivious battery and remanded for vacation of that conviction, finding a constitutional double jeopardy violation.
The court reversed Hill's conviction for lewd or lascivious battery and remanded for vacation of that conviction, holding that the double jeopardy violation was not cured by adjudicating guilt on both counts while holding sentencing in abeyance on one count. The proper remedy for a double jeopardy violation arising from dual convictions on the same conduct is to vacate the verdict on one of the offenses.
[1] Dual convictions for a single sexual act violate the constitutional prohibition against double jeopardy.
[2] A double jeopardy violation is not cured by adjudicating guilt of both offenses but holding sentencing on one in abeyance.
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 intelligence“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. 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.”
Establishes that holding sentencing in abeyance does not cure a double jeopardy violation; vacation of one conviction is the proper remedy.
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Join FLexlaw to unlock all legal intelligenceHill was convicted of both sexual battery by person in a position of familial or custodial authority (count I) and lewd or lascivious battery (count I…
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Appellant argues that his convictions for sexual battery.by person in a position of familial or custodial authority (count I) and lewd or lascivious battery (count II) based on a single sexual act violate the constitutional prohibition against double jeopardy. In light of the State’s concession of error, we reverse Appellant’s conviction for count II and remand for the trial court to vacate that conviction.
The double jeopardy violation resulting from Appellant’s dual convictions in this case was not cured by the trial court adjudicating Appellant guilty of both offenses but holding sentencing on count II “in abeyance.” See Bolding v. State, 28 So.3d 956, 957 (Fla. 1st DCA 2010) (“When *1072a 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, [citation omitted]. 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.”). We recognize that Appellant’s trial counsel acquiesced to this disposition,1 but consistent with the State’s concession of error, we conclude that this is one of those rare circumstances in which reversal is warranted based on ineffective assistance of counsel that is apparent on the face of the record. See generally Dailey v. State, 46 So.3d 647 (Fla. 1st DCA 2010) (explaining that appellate court will only consider claims of ineffective assistance of counsel on direct appeal “when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable”) (quoting Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002)); cf. Rios v. State, 730 So.2d 831 (Fla. 3d DCA 1999) (concluding on direct appeal that defense counsel’s erroneous stipulation that defendant was violent career criminal constituted ineffective assistance because without stipulation defendant could not have been convicted of possession of concealed weapon by violent career criminal).
In sum, we affirm Appellant’s conviction and sentence for sexual battery by person in a position of familial or custodial authority, but reverse Appellant’s conviction for lewd or lascivious battery and remand with instructions that the trial court vacate the latter conviction.
AFFIRMED in part; REVERSED in part; REMANDED with instructions.
CLARK, WETHERELL, and MAKAR, JJ., concur.
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Citator
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Johnson v. State, 133 So. 3d 602 (Fla. 1st DCA 2014)…opardy violation. While defense counsel invited the error during the sentencing hearing, reversal is proper because defense counsel’s ineffective assistance is apparent from the face of the record and the State concedes the error. See Hill v. State, 114 So. 3d 1071, 1072 (Fla. 1st DCA 2013) (holding that the appellant’s dual convictions constituted a double jeopardy violation, reversing in part and remanding with instructions to vacate one of the convictions, and noting that while the Court recognized that def…
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Dangelo H. Shipman v. State, 171 So. 3d 199 (Fla. 1st DCA 2015)…39 (Fla. 4th DCA 2008); Tannihill v. State, 848 So. 2d 442 (Fla. 4th DCA 2003); Hunt v. State, 769 So. 2d 1109 (Fla. 2d DCA 2000). Appellant is therefore entitled to vacation of the sentence imposed for lewd or lascivious battery. See Hill v. State, 114 So. 3d 1071 (Fla. 1st DCA 2013). We therefore affirm the conviction for the sexual battery, but reverse the conviction for lewd or lascivious battery and remand with instructions that the trial court vacate this conviction. AFFIRMED in part, REVERSED in par…
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Dalvin Lorenzo Denson v. State, 143 So. 3d 1198 (Fla. 1st DCA 2014)…lding the imposition of sentence for one of the offenses, does not cure the double jeopardy violation as it is ‘the record of appellant’s [*1201] conviction [that] constitutes the violation of double jeopardy.’ ” (citations omitted)); Hill v. State, 114 So. 3d 1071,1071 (Fla. 1st DCA 2013) (noting that a double jeopardy violation is not cured by the trial court’s holding sentencing “in abeyance”); Bolding v. State, 28 So. 3d 956, 957 (Fla. 1st DCA 2010) (holding that, when the defendant was found guilty of bot…
Authorities Cited
- Corzo v. State, 806 So. 2d 642 (Fla. 2d DCA 2002)
- Rios v. State, 730 So. 2d 831 (Fla. 3d DCA 1999)
- Bolding v. State, 28 So. 3d 956 (Fla. 1st DCA 2010)
- Daimon Terrell Dailey v. State, 46 So. 3d 647 (Fla. 1st DCA 2010)
- Pierre v. Royal Care/Usis, 46 So. 3d 647 (Fla. 1st DCA 2010)