HARVILL

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-1355 _____________________________

LEVI BILLY JACK HARVILL,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Bay County. Dustin S. Stephenson, Judge.

August 21, 2024

LEWIS, J.

Appellant, Levi Billy Jack Harvill, appeals his convictions and sentences for six counts of lewd or lascivious exhibition and five counts of indecent exposure, arguing they violate the Double Jeopardy Clause of the United States and Florida Constitutions. For the reasons that follow, we conclude that only four of the five indecent exposure convictions must be vacated. Facts Appellant was charged with six counts of lewd or lascivious exhibition, in violation of section 800.04(7)(a), (b), Florida Statutes (2022), and five counts of indecent exposure, in violation of section 800.03(1), (2)(a), Florida Statutes (2022), based on allegations that he exposed his penis and masturbated in the presence of eleven

1 The trial court noted that it would impose the same sentence even if Appellant could be convicted on only one of the counts.

2 Blockburger v. United States, 284 U.S. 299 (1932).

4 (7) Lewd or lascivious exhibition.-- (a) A person who: 1. Intentionally masturbates;

2. Intentionally exposes the genitals in a lewd or lascivious manner; or

3. Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition. (b) An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) An offender less than 18 years of age who commits a lewd or lascivious exhibition commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis added.)³ See also Fla. Std. Jury Instr. (Crim.) 11.10(e) (providing in part that “‘[i]n the presence of’ means that (victim) saw, heard, or otherwise sensed that the act was taking place”). The statute defines “victim” as “a person upon whom an offense described in this section was committed or attempted or a person who has reported a violation of this section to a law enforcement officer.” § 800.04(1)(d), Fla. Stat. (emphasis added).

3 The remainder of the statute, which proscribes lewd or lascivious battery, lewd or lascivious molestation, and lewd or lascivious conduct, similarly uses the language “a person,” except in section 800.04(4)(a)2., which refers to “any person.” § 800.04, Fla. Stat.

First, we must apply the Blockburger same elements test to determine whether Appellant’s punishments for both lewd or lascivious exhibition and indecent exposure arising from the same criminal transaction violate double jeopardy. The two offenses are separate because each requires proof of an element that the other does not – age of the victim in section 800.04(7) and location in section 800.03(1) –, and section 800.04(7) prohibits a wider range of conduct such that a violation thereof can be established with proof of an act other than exposure. Additionally, none of the exceptions in section 775.021(4)(b) apply. See Maisonet- Maldonado, 308 So. 3d at 71 (explaining that when two offenses

Section 800.04 now requires the prohibited act to be done “in the presence of a victim who is less than 16 years of age,” and it defines “victim” as “a person” upon whom the described offense was committed or who reported a violation of the statute to the police. The statute also provides that “[n]either the victim’s lack of chastity nor the victim’s consent is a defense to the crimes proscribed by this section” and that “[t]he perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of his or her age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as a defense in a prosecution under this section.” § 800.04(2), (3), Fla. Stat. The apparent purpose of section 800.04 is to protect children under sixteen from harm that can result from exposure to lewd acts. See Odom v. State, 561 So. 2d 443, 444 (Fla. 5th DCA 1990). The statute’s use of the article “a” before “victim” signals a legislative intent to permit prosecution for each victim. The Fourth District recently examined a very similar statute and rejected a double jeopardy challenge to convictions for two counts of lewd or lascivious exhibition in the presence of a correctional facility employee, in violation of section 800.09(2)(a), Florida Statutes (2021), which provided in part that a detained person may not “intentionally masturbate . . . in the presence of a person he or she knows or reasonably should know is an employee.”⁴ State, 374 So. 3d 832, 836 (Fla. 4th DCA

4 Section 800.09(2)(a), Florida Statutes, provides as follows: (2)(a) A person who is detained in a facility may not: 1. Intentionally masturbate;

2. Intentionally expose the genitals in a lewd or lascivious manner; or

3. Intentionally commit any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse,

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Jessica J. Yeary, Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Michael Schaub, Assistant Attorney General, Tallahassee, for Appellee.