JEWELL ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jewell Roberts appealed his convictions for kidnapping, robbery, and various sexual offenses against four young girls. The appellate court reversed four of the fourteen counts of lewd and lascivious acts, holding that a defendant can be convicted only once per distinct act, not once per victim, and remanded for resentencing on the remaining counts.
A defendant may be convicted only once per distinct lewd act, not once per victim. Roberts could be convicted on only one count for his single act of exposing, touching, and masturbating his penis in the presence of all four children, not four separate counts.
[1] Under Florida Statutes section 800.04(4), a defendant may be convicted of lewd and lascivious acts in the presence of a child based on the number of distinct lewd acts co…
[2] When a defendant commits one continuous act of exposing, touching, and masturbating his penis in the presence of multiple children, only one conviction for lewd and lasci…
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Join FLexlaw to unlock all legal intelligence“the number of distinct lewd acts should be determinative of the number of allowable convictions”
Establishes the controlling standard from Florida Supreme Court precedent that convictions are based on acts committed, not number of victims
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Join FLexlaw to unlock all legal intelligenceRoberts approached four girls under age sixteen at a ballfield in a city park, held a knife to one girl, and forced all of them into a dugout. He then…
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PARKER, Judge.
Jewell Roberts appeals the final judgment that adjudicated him guilty of four counts of kidnapping, four counts of robbery with a deadly weapon, fourteen counts of lewd and lascivious act on or in the presence of a child, and three counts of sexual battery with a deadly weapon. He raised three issues relative to his convictions, but only one has merit.
The state’s evidence established that Roberts approached four girls under the age of sixteen at a ballfield area in a city park. He held a knife to one of the girls and ordered all of the girls into a nearby ballfield dugout. Roberts first rubbed each girl’s breasts. Next he instructed the girls to remove their pants and panties, after which Roberts rubbed and in some cases inserted his finger into the girls’ vaginas. Roberts then exposed his penis, masturbated, and ejaculated while standing behind the girls. He also forced some of the girls to touch his penis.
Finally, Roberts instructed the girls to “play with themselves like they did at night in bed,” which caused the girls to touch their vaginas. Roberts then took the girls’ panties and left. When arrested, some of the girls’ panties were in Roberts’s possession. In counts 12, 16, 19, and 24, the state charged Roberts with four counts of a lewd and lascivious act in the presence of a child under sixteen years of age pursuant to section 800.04(4), Florida Statutes (Supp. 1990).
These four counts encompass one act, i.e., “exposing and/or touching and/or masturbating his penis.” Roberts argues and we agree that he can be charged for only the number of acts, not the number of victims. The Florida Supreme Court, in State v. Hernandez, 596 So. 2d 671 (Fla.1992), held that the “number of distinct lewd acts should be determinative” of the number of allowable convictions. Hernandez, 596 So. 2d at 672. The supreme court specifically disapproved of this court’s opinion in Bergen v. State, 552 So. 2d 262 (Fla. 2d DCA 1989) which held that the state correctly charged the defendant with five counts of masturbation in the presence of five children.
Accordingly, we reverse the convictions in counts 12, 16, 19, and 24 and remand to the trial court to resentence Roberts to only one of these counts. Otherwise, the judgment and sentences are affirmed.
CAMPBELL, A.C.J., and SCHOONOVER, J., concur.
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Citator
Cited By
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Bond v. State, 642 So. 2d 674 (Fla. 5th DCA 1994)…held that it is the number of distinct lewd acts committed which determines the number of allowable convictions for committing a lewd act in the presence of a child, not the size of the audience or the number of witnesses. See also Roberts v. State, 620 So. 2d 1082 (Fla. 2d DCA 1993). Since the evidence in this case established only one lewd act, one of the convictions must be reversed. Although only one of the girls testified that appellant was aware of their presence and knowingly continued to masturbate, th…
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Morris v. State, 789 So. 2d 1032 (Fla. 1st DCA 2001)…pecifically prohibited by some other statutory provision. See Burnett v. State, 737 So. 2d 1106, 1107 (Fla. 1st DCA 1998). Exposing adult genitalia to a child has been held to violate section 800.04(4), Florida Statutes (1997). See Roberts v. State, 620 So. 2d 1082, 1082 (Fla. 2d DCA 1993). Otherwise, the apparent function of former section 800.04(4) was to proscribe lewd or lascivious acts perpetrated on a third party in the presence of a child. See Simmons v. State, 722 So. 2d 862, 862 (Fla. 5th DCA 1998); B…
Authorities Cited
- State v. Hernandez, 596 So. 2d 671 (Fla. 1992)
- Lealear J. Jackson v. State, 552 So. 2d 262 (Fla. 2d DCA 1989)