Darville v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2008
ANTHONY DARVILLE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D03-2726
[October 29, 2008]
OPINION ON REMAND FROM THE FLORIDA SUPREME COURT
FARMER, J.
In returning this case to us, the Supreme Court instructed us to
reconsider our decision in light of the Court’s subsequent decision in
State v. Paul, 934 So.2d 1167 (Fla. 2006). We now turn to that task.
In our original decision, relying on our prior decisions in Paul v. State,
912 So.2d 8 (Fla. 4th DCA 2005); Schwenn v. State, 898 So.2d 1130 (Fla.
4th DCA 2005); Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001);
and Pryor v. State, 755 So.2d 155 (Fla. 4th DCA 2000), we affirmed three
separate convictions arising from a single criminal episode. We relied on
Blockburger1 principles to conclude that the crimes could be separately
punished. The Supreme Court then granted review of Paul and reversed
our decision in that case. 934 So.2d 1167.
In Paul, the Supreme Court confronted separate punishments for
multiple criminal acts falling under the lewd and lascivious conduct
statute.2 The acts all occurred during a single encounter but involved
Blockburger v. United States, 284 U.S. 299 (1932).
§ 800.04, Fla. Stat. (2007). The separate offenses were: (1) intentionally touched
the victim's genital area or the clothing covering it, contrary to section 800.04(5),
Florida Statutes (1999); (2) intentionally touched the victim in a lewd or lascivious
manner by kissing the victim's neck, contrary to section 800.04(6), Florida Statutes
(1999); (3) intentionally touched the victim in a lewd or lascivious manner by rubbing
his penis on the victim's stomach area, contrary to section 800.04(6), Florida Statutes
1
2
distinct episodes. The court held that some of the acts could be
separately punished, but some could not.
In this case, the multiple punishments include one conviction for lewd
and lascivious molestation and two convictions for sexual battery.3 All
criminal acts occurred during a single encounter in the same space
between the same persons, lasting no more than five minutes. Applying
the Supreme Court’s analysis in Paul, we now conclude that the separate
convictions for sexual battery were improper. Both acts of sexual battery
charged by the State in this case involve exactly the same elements
without temporal or spatial separation. Because both involve exactly the
same elements, dual convictions and punishments are not permitted.
See Paul, 934 So.2d at 1174 (holding that if one cannot say that each
offense has an element that the other does not, dual convictions and
punishments are not permitted).
Because the lewd a n d lascivious molestation conviction involved
conduct occurring during the same criminal episode as the sexual
battery, we must also reconsider whether it ma y properly result in
separate punishment. We have no difficulty in ascertaining that the lewd
and lascivious molestation offense contains an element not found in the
sexual battery conviction, and vice versa. See Binns v. State, 979 So.2d
439, 442 (Fla. 4th DCA 2008) (holding that crimes of lewd and lascivious
acts and sexual battery each contain an element that the other does not).
That means we must next determine whether separate punishments are
forbidden by Florida law.4
This turns on whether the separate offenses of sexual battery and
lewd a n d lascivious molestation are intended to punish “the same
primary evil.” See Paul, 934 So.2d at 1175 (where crimes are not
intended to punish same primary evil but address different evils, and two
crimes are not merely degree variants of the same core offense, separate
punishments are authorized by § 775.021(4)(b)). Sexual battery is the
“oral, anal, or vaginal penetration by, or union with, the sexual organ of
another or the anal or vaginal penetration of another b y an y other
object.” § 794.011(1)(h), Fla. Stat. (2007).
Lewd a n d lascivious
molestation is the intentional touching of “the breasts, genitals, genital
(1999); and (4) intentionally exposed his genitals in a lewd or lascivious manner in the
presence of the victim, contrary to section 800.04(7), Florida Statutes (1999).
3 § 794.011(8), Fla. Stat. (2007).
4 See 775.021(4)(b)(2), Fla. Stat. (2007) (exceptions to separate punishments are: 1.
offenses requiring identical elements of proof; 2. offenses that are degrees of the same
offense as provided by statute; 3. lesser offenses whose elements are subsumed by the
greater offense).
area, or buttocks, or the clothing covering them, of a person less than 16
years of age, or forc[ing] or entic[ing] a person under 16 years of age to so
touch the perpetrator.” § 800.04(5)(a), Fla. Stat. 2007.
In this case, the sexual battery offense and the lewd and lascivious
molestation offense each contain an element the other lacks. Therefore
separate punishments for sexual battery a n d lewd a n d lascivious
molestation during the same episode are not prohibited.
We reverse the imposition of separate sentences for sexual battery
and remand for the trial court to eliminate the separate punishment for
one of the two sexual battery counts.
Reversed.
STONE and TAYLOR, JJ., concur.
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*
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; A n a I. Gardner, Judge; L.T. Case No. 01-015114
CF10A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali,
Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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