09-1894 RYAN DONALD-JAMES PARTCH, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 09-1894

Case Date: 07/20/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

RYAN DONALD-JAMES PARTCH, Appellant/Cross-Appellee,

CASE NO. 1D09-1894 v. STATE OF FLORIDA, Appellee/Cross-Appellant. _____________________________/ Opinion filed July 20, 2010. An appeal from the Circuit Court for Escambia County. T. Michael Jones, Judge. Ross A. Keene of Beroset & Keene, Pensacola, for Appellant/Cross-Appellee. Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant. WOLF, J. Appellant challenges his convictions for sexual battery by vaginal penetration and attempted sexual battery on a person helpless to resist. He raises a number of issues; we find merit in one. Appellant's dual convictions violate principles of double jeopardy. We, therefore, reverse the conviction for attempted sexual battery on a person helpless to resist and remand for resentencing on the

sexual battery. In light of our disposition, it is unnecessary for us to address the State's cross-appeal challenging the downward departure sentence imposed by the trial court. Following a trial, appellant was convicted of : COUNT I: [Appellant] on or about March 30, 2008, at and in Escambia County, Florida, did unlawfully commit a sexual battery upon a person twelve (12) years of age or older, to-wit: [victim] . . . nineteen years of age, by penetration of the vagina of said victim by the penis of said defendant without the consent of [victim], and in the process thereof did not use physical force and violence likely to cause serious personal injury, in violation of Section 794.011(5), Florida Statutes. .... COUNT 3: [Appellant] on or about March 30, 2008, at and in Escambia County, Florida, did unlawfully attempt to commit a sexual battery upon a person twelve years of age or older, to-wit:, [victim] . . ., nineteen years of age, without the consent of said victim, and while the said victim was physically helpless to resist, in violation of Section 794.011(4)(a), Florida Statutes. At trial, evidence established appellant entered a room where an intoxicated young woman was sleeping and began to undress her. After the young woman awoke, appellant continued his sexual assault and, in doing so, completed an act of vaginal penetration. Appellant asserts his convictions violate double jeopardy. "The most

familiar concept of the term `double jeopardy' is that the Constitution prohibits subjecting a person to multiple prosecutions, convictions and punishments for the 2

same criminal offense."

Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009).

However, there exists "no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction, as long as the Legislature intends to authorize separate punishments." McKinney v. State, 24 So. 3d 682, 683 (Fla. 5th DCA 2009) (citing Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001)). In deciding whether separate offenses exist, absent clear Legislative intent, Florida law requires a three-step inquiry into whether the same offense has been charged multiple times. Specifically, in order to determine if appellant's convictions violate double jeopardy, we must first ascertain if the charges were based on an act or acts which occurred within the same criminal transaction and/or episode. If the charge did occur during the same transaction or episode, we must then determine if the convictions were predicated on distinct acts. If the charges are not predicated on distinct acts and have occurred within the same criminal episode, we must next decide if the charges survive a same elements test as defined by section 775.021, Florida Statutes (2008), commonly referred to as the Blockburger1analysis, which provides in pertinent part: (4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may
1

Blockburger v. United States, 284 U.S. 299 (1932). 3

order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial. (b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are: 1. Offenses which require identical elements of proof. 2. Offenses which are degrees of the same offense as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. A. Same Criminal Transaction and/or Episode

Multiple punishments and convictions may rest on offenses occurring within differing criminal episodes. In State v. Paul, 934 So. 2d 1167, 1173 (Fla. 2006) (overruled on other grounds by Valdes, 3 So. 3d 1067), the supreme court reasoned in order to determine if offenses arose out of the same criminal episode, a reviewing court must: "look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a `temporal break' between offenses." Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2nd DCA 2002)); see also Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001) (same); Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004) (holding that in order for crimes to be considered to have occurred in more than one criminal episode, there must be a sufficient 4

temporal break between the two acts in order to allow the offender to reflect and form a new criminal intent for each offense). Here, based on the testimony provided at trial, the conduct giving rise to the charges occurred within a small time span of minutes, included no discernable temporal break, and was committed on the same victim. Consequently, this

appears to have been one criminal episode. Paul, 934 So. 2d at 1173. B. Distinct Acts

In addition to asking whether the charges arose out of a single criminal episode, we must also decide if the charges were predicated on distinct criminal acts. Specifically, in Hayes, 803 So. 2d at 700, the supreme court recognized "the prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts." (Emphasis in original). See also Valdes, 3 So. 3d at 1078 n.12 (noting in that case, "because one criminal act gave rise to multiple separate offenses, double jeopardy is not violated," which is "distinguishable from cases in which double jeopardy is not a concern because multiple convictions occurred based on two distinct criminal acts."). In applying the distinct acts exception to double jeopardy principles, the court in Hayes limited the exception's application. 803 So. 2d at 700-01. Specifically, not all charges arising out of different acts occurring within the same criminal episode will rise to the level of "distinct" acts and allow for a finding of 5

multiple offenses. Hayes, 803 So. 2d at 700. Instead, the relevant inquiry into whether acts are "distinct" rests on factors such as whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a change in location between the acts; and/or (4) a new criminal intent formed. Id. (citing Hearn v. State, 55 So. 2d 559, 560 (Fla. 1951); Brown v. State, 430 So. 2d 446, 447 (Fla. 1983)); see also Saavedra v. State, 576 So. 2d 953, 958 (Fla. 1st DCA 1991) (holding the crucial question in determining whether distinct acts occurred is typically whether defendant had time to reflect and form a new criminal intent between the acts).2 In addition to the foregoing, Florida courts have also held the Florida sexual battery statutes are particularly susceptible to the distinct acts exception because the statutes "may be violated in multiple, alternative ways, i.e., `oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other act.'" See Saavedra v. State, 576 So. 2d 953, 956-57 (Fla. 1st DCA 1991); see also State v. Meshell, 2 So. 3d 132 (Fla. 2009);

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