5D02-2738 John Messer v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2738

Case Date: 07/05/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004

JOHN WESLEY MESSER, Appellant, v. STATE OF FLORIDA, Appellee. ___________________________________/ Opinion filed July 9, 2004 Appeal from the Circuit Court for Osceola County, C. Alan Lawson, Judge. James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee. MONACO, J. The appellant, John Wesley Messer, was convicted by a jury of one count of sexual activity with a child and two counts of lewd and lascivious molestation. The primary issue on this appeal concerns whether double jeopardy precludes conviction of, and sentencing on the two lewd and lascivious counts. After a careful review of the record we conclude that there was substantial competent evidence demonstrating that there was sufficient spatial and temporal differentiations between the multiple occurrences so that the jury could properly find that the appellant had time to pause, reflect and form a new criminal intent between the CASE NO. 5D02-2738

occurrences. See King v. State, 834 So. 2d 311 (Fla. 5th DCA 2003); Morman v. State, 811 So. 2d 714 (Fla. 2d DCA 2002); Eaddy v. State, 789 So. 2d 1093 (Fla. 4th DCA 2001). Thus, the acts deemed by the jury to be lewd and lascivious molestations were sufficiently discrete to justify separate convictions and sentences for the two acts. Accordingly, there was no violation of constitutional double jeopardy, and we affirm the judgment and sentence. AFFIRMED.

PLEUS and TORPY, JJ., concur.

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