5D06-1758 Kenneth Robinson v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-1758

Case Date: 05/07/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2007

KENNETH ROBINSON, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed May 11, 2007 Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge. James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee. CASE NO. 5D06-1758

LAWSON, J. Kenneth M. Robinson appeals his judgment and sentence for criminal solicitation to commit murder and solicitation to commit kidnapping. He argues that his convictions were obtained using DNA evidence introduced at trial in violation of the Fifth Amendment's double jeopardy clause, as interpreted in Ashe v. Swenson, 397 U.S. 436

(1970) and State v. Perkins, 349 So. 2d 161 (Fla. 1977).1 Because the issue was not preserved for appellate review, we affirm. argument lacking in merit. Robinson was accused and convicted of soliciting another jail inmate (expected to soon be released) to kidnap and kill a thirteen-year-old child. The young girl had been the victim of a sexual battery, and Robinson was charged with that crime. While Robinson was in jail pending trial on the sexual battery charge, law enforcement officers came to collect a DNA sample from him, to test against DNA evidence collected from the girl's body following her rape. It was after Robinson was notified of the existence of DNA evidence, when law enforcement collected the DNA sample from him, that he attempted to arrange for the girl's kidnapping and murder. However, the inmate who Robinson attempted to hire for the killing notified law enforcement instead. Robinson was arrested on the solicitation charges after law enforcement further investigated to corroborate the informant's account. This investigation included the surreptitious Notwithstanding, we also find Robinson's

recording of a conversation between the informant and Robinson, to arrange details of the murder for hire. With respect to the sexual battery charge, the State inexplicably failed to complete its DNA testing prior to trial. Therefore, the only evidence against Robinson, at that trial, was the girl's testimony. And, Robinson was acquitted. After t he sexual
1

In Perkins, our Supreme Court appeared to be applying the U.S. Supreme Court's formulation of the Fifth Amendment's double jeopardy clause, as described in Ashe. However, our Supreme Court later clarified that "Perkins rests entirely on Florida law." Burr v. State, 576 So. 2d 278, 280 (citing Art. I,

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