RICHARDSON OMELIEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Separate convictions for lewd and lascivious battery and molestation are permissible even if stemming from one criminal episode, provided there is a sufficient temporal break allowing for new criminal intent.
Appellant engaged in sexual activity with a minor, including kissing and intercourse, after a date at his home. The conduct involved moving from the l…
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KLEIN, J.
As a result of having sexual activity with a victim under the age of sixteen, appellant was convicted of violating section 800.04(4), Florida Statutes (2003) (lewd and lascivious battery), and section 800.04(5)(c)(2) (lewd and lascivious molestation). He argues that double jeopardy precludes separate convictions because they stem from one criminal episode. We affirm.
The evening began as a date which included dinner and renting a movie to watch at appellant’s home. While they were watching the movie appellant kissed the victim and convinced her to go with him into his bedroom. In the bedroom he kissed her, removed her shirt and kissed her breasts. She told him she did not want to have sex and that she felt uncomfortable. He then went into the bathroom, removed his clothes, and returned wearing only boxer shorts. He then removed her pants and engaged in vaginal intercourse with her. The issue is whether appellant’s conduct in the bedroom prior to his going into the bathroom can form the basis for a separate offense. Although that was unclear when the briefs were filed in this case, our supreme court has now held in State v. Paul, 934 So. 2d 1167 (Fla.2006), that it can. In Paul, after engaging in sexual activity in the living room of the victim’s apartment, defendant asked the victim if they could go into the bedroom. They then went into the bedroom, shut the door and engaged in more intimate sexual activity. In Paul the court held that there was a sufficient temporal break between the activity in the living room and the activity in the bedroom, for the offender to reflect and form a new criminal intent.
If the moving from one room to another in Paul was a sufficient temporal break to support separate convictions, then the break in this case, while appellant went into the bathroom, was also sufficient to support separate convictions. We accordingly affirm.
POLEN and MAY, JJ., concur.
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Bertram L. Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007)…tion for lewd and lascivious offenses did not violate double jeopardy as there was a [*959] sufficient temporal break between activity in living room and activity in bedroom for defendant to reflect and form a new criminal intent); Omelien v. State, 939 So. 2d 1174 (Fla. 4th DCA 2006) (holding that lewd and lascivious battery and lewd and lascivious molestation did not occur in a single criminal episode, and, hence, convictions for both offenses' did not violate double jeopardy; defendant’s acts of kissing min…
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Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007)…ay be maintained for each episode of driving under the influence (DUI). Generally, a separate criminal episode occurs when there is a sufficient temporal break that allows the offender to reflect and form a new criminal intent. See Omelien v. State, 939 So. 2d 1174, 1175 (Fla. 4th DCA 2006). However, as mentioned above, there was no such temporal break in this case. We thus conclude that the defendant’s dual convictions were barred by double jeopardy and reverse with directions to vacate the DUI conviction (Co…
Authorities Cited
- State v. Paul, 934 So. 2d 1167 (Fla. 2006)