Charges under Section 800.04 in Florida of both lewd or lascivious molestation and lewd or lascivious conduct violate double jeopardy

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Charges under Section 800.04 of both lewd or lascivious molestation and lewd or lascivious conduct violate
double jeopardy.

The Fifth Amendment “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).

Because double jeopardy issues involve purely legal determinations, the standard of review is de novo. See Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002). Sections 800.04(5)(a) and 800.04(6)(a) for conduct against the same victim during the  same episode are duplicative and violate double jeopardy.  Section 800.04, Florida Statutes, defines various lewd or lascivious offenses under Florida law. Subsection (5)(a) defines lewd or lascivious molestation, providing in pertinent part as follows: “A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.” § 800.04(5)(a), Fla. Stat. (2004).2 Subsection (6)(a) defines lewd or lascivious conduct, providing that a person who “[i]ntentionally touches a person under 16 years of age in a lewd or lascivious manner … commits lewd or lascivious conduct.” § 800.04(6)(a), Fla. Stat. (2004). State v. Paul, 934 So. 2d 1167 (Fla. 2006), receded from in part by Valdes v. State, 3 So. 3d 1067 (Fla. 2009). In Paul, the defendant had touched the victim in the genital area  over the clothing and kissed the victim on the neck while in the living room. For the episode in the living room, the defendant was convicted of lewd and lascivious molestation under section 800.04(5)(a) for touching
the victim’s genitals, and lewd and lascivious conduct under section 800.04(6)(a) for kissing the neck.

In Gordon v. State, as cited in Paul, our supreme court explained: “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’” 780 So. 2d 17, 19 (Fla. 2001), receded from in part by
Valdes (quoting M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996)). If there is no clear “legislative intent to authorize separate punishments for two crimes” then a court employs the use of the Blockburger3 test “to determine whether separate offenses exist.” Id. at 19-20. Finding no clear statement of legislative intent in its review of section 800.04, the
Paul court applied the codified Blockburger analysis set forth in section 775.021. Paul, 934 So. 2d at 1172. Noting that the Blockburger test applies to crimes occurring in only
one criminal transaction or episode, the Paul court explained that the first step is to review whether there was one criminal episode or multiple episodes. Id. In determining whether offenses occurred during a single criminal episode, courts 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.” Id. at 1172-73 (citation and internal quotations omitted).

A court must then “apply the Blockburger test to each criminal episode to determine whether multiple punishments are authorized.” Id. at 1173. The Blockburger “same elements” test “prohibits courts from imposing multiple convictions for an act or acts which occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses.” Id. at 1172. Under the “same elements” test, each offense is considered 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.’” Id. at 1173 (quoting § 775.021(4)(a), Fla. Stat. (2005)) (emphasis in Paul).

In reference to offenses under sections 800.04(5)(a) and (6)(a), the Paul court explained:  In comparing the elements of sections 800.04(5)(a) and 800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section 800.04(6)(a)(1) defines “lewd or lascivious conduct” as a n y intentional touching of “a person under 16 years of age in a lewd or lascivious manner,” while section 800.04(5)(a) defines “lewd or or lascivious molestation” as the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” § 800.04, Fla. Stat. (1999).

Any violation of subsection (5)(a),  which prohibits the lewd touching of particular body parts of a person under sixteen years of age, will also violate subsection (6)(a), which simply prohibits any lewd touching of a person under sixteen years of age. Thus, one cannot say “each offense has an element that the other does not.” While subsection (5)(a) has an element that subsection (6)(a) does not, the converse is not true – that (6)(a)(1) has an element (5)(a) does not. Therefore, dual convictions and punishments are not permitted for these violations. Id. at 1173-74 (emphasis in original). The court concluded that Paul could not be convicted of both a violation of section 800.04(5)(a) and section 800.04(6)(a)(1) for the two acts in the living room.

You cannot be convicted of both when the  two charges arose out of one criminal episode, and both acts were performed on one victim in the same location and with practically no temporal separation. S e e Paul. Furthermore, the “same elements” test establishes that  both section 800.04(5)(a) and section 800.04(6)(a) are for conduct in the same criminal episode. Id. at 1173-74. Therefore, his conviction and sentences for both crimes violates double jeopardy.

When dual convictions of the same degree are found to violate double jeopardy, the proper remedy is to “vacate the conviction and sentence on one of those counts.” Binns v. State, 979 So. 2d 439, 442 (Fla. 4th DCA 2008).

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Edward J. Chandler, Esq.has been practicing criminal law in Florida since 1991.

No single element is more crucial in creating a successful relationship between a client and a law firm than the quality of the service performed by the professionals involved. “Quality,” of course, is expressed by key characteristics such as knowledge, skill, experience and dedication. In that sense, it is an intangible. An expression of quality is strategic problem solving which takes the form of expert legal counsel and, when necessary, aggressive court action.

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He represents those under investigation or arrested for Federal and State crimes and will take your case to trial if necessary.He will file necessary pre-trial motions such as a motion to suppress a search, evidence or statements made in violation of your constitutional rights, and can file a motion to dismiss the charges.

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FEDERAL CRIMINAL DEFENSE:Facing federal charges is a stressful experiences, even with one of the best Federal Criminal Defense Attorneys in Florida at your side.

By the time you realize that you are the target of federal criminal investigation, the government has already built a strong case against you. The Feds and its criminal investigative agencies, DEA, FBI, Homeland Security, and the Treasury Department,  have almost unlimited material and human resources to prosecute their cases. Federal prosecutors obtain conviction in more than 95 percent of federal criminal trials!

The U.S. sentencing guidelines, although not mandatory anymore since Booker, are still used in the sentencing process and the guidelines are harsh.  The federal criminal justice system does not usually provide for parole. In most cases, convicted individuals will serve most of their sentences except the last six months in a half way house.. All these issues make defending against federal charges more complex.

I can help and as your attorney who may impact the government’s case by various strategic and legal procedural methods to gain an advantage possibly in a motion for suppression of evidence, and possibly a case dismissal, reduction of charges, or a favorable plea bargain.

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Your chances of a successful outcome of your case depends on how soon I get involved as your lawyer. You should be represented as soon as you discover that you are under investigation, or as soon as possible after your arrest. If you are a target of grand jury inquiries or federal investigation, I can help. I can handle all federal criminal charges including:

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Choosing The Best Criminal Attorney For Your CaseAnyone facing an allegation that they have violated state or federal law needs a strong and knowledgeable criminal defense attorney they can respect and trust. Money, jailtime, and even someone’s life may be on the line and a criminal lawyer has to be trusted to fight hard for his client’s best interests.

Edward Chandler is dedicated to helping people who are facing criminal authorities in arrests, allegations, investigations, trials, or appeals. He is a criminal defense lawyer who wants what is best for each client, and works hard to find a resolution that will most likely help his client to erase the past and begin a new future. Time and again, he has gained dismissals, acquittals and reductions for his clients.

Before deciding on the right criminal defense lawyer for your case, you should talk with the attorney and get a feel for how you will work together. There’s no bond like that between a criminal defense lawyer and his client, and deciding who to hire as your criminal defense attorney may be the most important decision of your life.

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