R.L. SAMUEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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R.L. Samuel appealed his conviction on two counts of lewd and lascivious battery on a minor, arguing the convictions violated double jeopardy protections. The Fourth District Court of Appeal affirmed, holding that the two distinct sexual acts were temporally separated and allowed the defendant sufficient time to form a separate intent, precluding a double jeopardy violation.
Two convictions do not violate double jeopardy when the sexual acts are 'distinct in character and temporally separated' such that the defendant had sufficient time between each act to reflect and form a new criminal intent.
“when the acts are "distinct in character and temporally separated" giving "the defendant sufficient time between each ... to reflect and form a new criminal intent," there is no double jeopardy violation”
Establishes the legal test for determining whether multiple convictions violate double jeopardy protection in cases involving multiple sexual acts
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Join FLexlaw to unlock all legal intelligenceThe defendant was charged with two separate counts involving oral sex with a male child: one count for performing oral sex on the child and another co…
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MAY, J.
The defendant appeals his conviction and sentence on two counts of lewd and lascivious battery on a minor. He argues, among other things, that the two convictions violate his right against double jeopardy. We disagree and affirm.
This is yet another sexual scenario in which this court is called upon to determine whether sexual acts occur so close in time and space that they should constitute a single crime or whether there is a sufficient temporal break allowing for the defendant to form a separate intent to justify a conviction for multiple crimes. As this court stated in Schwenn v. State, 898 So. 2d 1130, 1132 (Fla. 4th DCA 2005), when the acts are “distinct in character and temporally separated” giving “the defendant sufficient time between each ... to reflect and form a new criminal intent,” there is no double jeopardy violation.
In this case, the State charged the defendant with performing oral sex on a male child. In a separate count, the State charged the defendant with having the male child perform oral sex on the defendant. The testimony reflected two sexual acts “distinct in character” and “temporally separated” such that the defendant had sufficient time to reflect and form a new criminal intent. There was therefore no double jeopardy violation.
Affirmed.
STONE and GROSS, JJ., concur.
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Citator
Cited By
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Meshell v. State, 980 So. 2d 1169 (Fla. 5th DCA 2008)…the other district courts in Florida do not appear to have applied their Duke double jeopardy analysis of the sexual battery statute to the same list of distinct sex acts proscribed in section 800.04(4), Florida Statutes. See, e.g., Samuel v. State, 925 So. 2d 475 (Fla. 4th DCA 2006) (upholding multiple convictions for lewd and lascivious battery over double jeopardy challenge based upon finding that the acts were both distinct in character and temporally separated so that the defendant had sufficient time to…
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Dirk Schuster v. State, 17 So. 3d 304 (Fla. 4th DCA 2009)…rdy 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.…
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Quayle Richardson v. State, 971 So. 2d 295 (Fla. 4th DCA 2008)…a Statutes (2006). . Since this matter will be retried, we will briefly address Richardson’s double jeopardy argument. We find no merit to Richardson’s argument that his convictions on Counts I and III violated double jeopardy. See Samuel v. State, 925 So. 2d 475 (Fla. 4th DCA 2006); Darville v. State, 912 So. 2d 63 (Fla. 4th DCA 2005); Schwenn v. State, 898 So. 2d 1130 (Fla. 4th DCA 2005).…
Authorities Cited
- Jeffry Schwenn v. State, 898 So. 2d 1130 (Fla. 4th DCA 2005)