5D11-2847 Hubert Graves v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D11-2847

Case Date: 08/20/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2012

HUBERT GRAVES, III, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed August 24, 2012 Appeal from the Circuit Court for Orange County, Walter J. Komanski, Judge. Paula C. Coffman Orlando, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee. COHEN, J. Hubert Graves was convicted by a jury of lewd or lascivious battery and lewd or lascivious molestation. He was sentenced to consecutive fifteen-year terms in the Case No. 5D11-2847

Department of Corrections. He raises two issues on appeal, only one of which merits discussion. Graves claims his convictions on both charges violate double jeopardy. The evidence adduced at trial reflects that the victim, K.A., was raised by Graves and his wife in Georgia. Graves was K.A.'s step-grandfather. K.A. alleged that Graves molested her on multiple occasions over a period of years. The incident which gave

rise to Florida charges occurred during a family reunion. K.A., who was thirteen years old at the time, testified she fell asleep on a couch at the home of a relative and was awakened as Graves carried her to a bedroom. She remembers being turned over on the bed and having her pants and underwear removed. penetrated her vagina with his penis. As to the lewd or lascivious battery count, the information alleged that Graves "did with his penis penetrate or have union with the sexual organ" of K.A., a person twelve years of age or older, but less than sixteen years of age. As to the lewd or lascivious molestation count, the information alleged that Graves intentionally touched K.A., a person twelve years of age or older but less than sixteen years of age, in a lewd or lascivious manner, and specifically that he "did touch the genitalia of K.A." The information did not specify the manner of the touching; however, the evidence introduced at trial is clear that the only touching of the victim's genitalia coincided with the penetration or union alleged in the lewd or lascivious battery count. In determining the constitutionality of multiple convictions and sentences arising from the same criminal transaction, legislative intent is the polestar. State v. Anderson, 695 So. 2d 309, 311 (Fla. 1997). The question becomes whether the Legislature K.A. testified Graves

intended to authorize separate punishments. Here, there is no clear legislative intent to allow for multiple punishments for both lewd or lascivious battery1 and lewd or lascivious molestation,2 other than the Legislature's general position, as articulated in section

1

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