DIRK SCHUSTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dirk Schuster was convicted of multiple sexual offenses against a 12-year-old child, including lewd and lascivious battery and molestation. The Fourth District Court of Appeal affirmed the conviction, rejecting a double jeopardy challenge and finding that multiple distinct sexual acts separated by time and opportunity to reflect constitute separate offenses.
The court held that no double jeopardy violation occurred because the sexual acts were serial, distinct in character, and Schuster had sufficient time between each act to reflect and form new criminal intent, thus constituting separate offenses.
[1] Sexual acts are distinct and serial, rather than a single course of conduct, when there is sufficient time between each act for reflection and formation of new criminal i…
[2] A defendant may be convicted of multiple counts of lewd and lascivious battery and molestation arising from a single visit to a victim's home if the sexual acts are seria…
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Join FLexlaw to unlock all legal intelligence“We find no double jeopardy violation because the sexual acts were serial, distinct in character, and appellant had sufficient time between each act to reflect and form a new criminal intent.”
The court's holding rejecting the double jeopardy challenge and establishing the test for multiple sexual offenses
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSchuster invited a 12-year-old victim to his house where they watched pornographic movies. Schuster then engaged in a series of sexual acts with the c…
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Dirk Schuster was charged with two counts of lewd and lascivious molestation under section 800.04(5)(a), Florida Statutes (2007), and four counts of lewd and lascivious battery against a minor, contrary to section 800.04(4)(a). The jury found Schuster guilty of four counts of lewd and lascivious battery, one count of lewd and lascivious molestation, and one count of an unnatural and lascivious act, section 800.02, as a lesser included offense.
The charges arose from one visit by the 12 year old victim to appellant’s house. The two watched pornographic movies and appellant asked the victim to “massage his back.” The child agreed and began to massage appellant’s back. During the massage, appellant asked the victim to lay on top of him. He complied. Appellant then asked the child if he “was willing to try” the types of things occurring in the pornographic movies. The child agreed and appellant touched the child’s penis with his hand. Afterwards, appellant per*305formed fellatio on the child; the child performed fellatio on appellant. Next, appellant “took his penis and put it in [the child’s] behind” until the child complained that “it was hurting ... and he stopped.” Then the child “stuck [his] penis inside [appellant’s] butt,” which appellant facilitated by putting “something” on the child’s penis to make penetration easier. The child asked appellant if he wanted the child “to take it out when [he] was fixing to do it.” Appellant said, “Go ahead and do it inside.” After the child ejaculated, both parties dressed and appellant instructed: “Don’t tell nobody nothing.”
We find no double jeopardy violation because the sexual acts were serial, distinct in character, and appellant had sufficient time between each act to reflect and form a new criminal intent. See Schwenn v. State, 898 So.2d 1130, 1132 (Fla. 4th DCA 2005); Samuel v. State, 925 So.2d 475 (Fla. 4th DCA 2006). See also Meshell v. State, 980 So.2d 1169 (Fla. 5th DCA 2008) quashed by State v. Meshell, 2 So.3d 132 (Fla.2009).
Affirmed.
GROSS, C.J., POLEN and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wong v. State, 212 So. 3d 351 (Fla. 2017)…lascivious molestation involving the defendant’s placement of his head between the victim’s exposed breasts); Sherrer v. State, 898 So. 2d 260, 261 (Fla. 1st DCA 2005) (lewd or lascivious molestation involving touching); see also Schuster v. State, 17 So. 3d 304, 304 (Fla. 4th DCA 2009) (affirming conviction of unnatural and lascivious act as a lesser-ineluded offense of a charge of lewd or lascivious molestation for male to male sexual conduct); Leveille v. State, 927 So. 2d 1008, 1009-10 (Fla. 4th DCA 200…
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Drawdy v. State, 98 So. 3d 165 (Fla. 2d DCA 2012)…ration or union with the victim’s mouth in the same episode — “[bjecause the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1....” Id. at 136; see also, e.g., Schuster v. State, 17 So. 3d 304 (Fla. 4th DCA 2009) (upholding four convictions for serial, distinct lewd and lascivious batteries in same episode); State v. Gonzalez, 24 So. 3d 595 (Fla. 5th DCA 2009) (approving dual convictions for lewd and lascivious battery in single episode).…
Authorities Cited
- State v. Meshell, 2 So. 3d 132 (Fla. 2009)
- Jeffry Schwenn v. State, 898 So. 2d 1130 (Fla. 4th DCA 2005)
- Cummings v. Miami-Dade Water & Sewer Dep't, 980 So. 2d 1169 (Fla. 3d DCA 2008)
- Meshell v. State, 980 So. 2d 1169 (Fla. 5th DCA 2008)
- Steele v. State, 925 So. 2d 475 (Fla. 4th DCA 2006)
- R.L. Samuel v. State, 925 So. 2d 475 (Fla. 4th DCA 2006)