LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SEATE D.
CHIEF JUSTICE: GOOD MORNING LADIES AND GENTLEMEN, AND WELCOME TO THE FI RST ORAL ARGU MENT OF 2006. THE FIRST C A SE ON THIS MORNING'S DOCKET IS STATE OF FLORIDA VE RSUS STEVEN PAUL. THE PARTIES READY? YOU MAY PROCEED.
GOOD MORNING TO A LL OF YOU. MY NAME IS JEANINE GERMANOWICZ. I AM HERE TO DAY TO REPRESENT THE STATE OF FLORIDA IN THIS MATTER, AND LET ME T AKE A MOMENT TO GIVE YOU A BRI EF SIP O PZ . VERY BRIEFLY , I W ILL T ELL YOU WHAT HAENED.THE DEFENDANT, MR. PAUL , A 43-YEAR-OLD MAN AT THE T IME , , THE VICTIM A 13-YEAR-OLD BOY , THE VI CTIM INV ITED HIM IN. THEY ARE STANDING IN THE LIVING RO OM. AFTER CONVERSATION, MR. PAUL REACHES OVER AND TOUCHES THE VICTIM BY KISSING HIM ON THE NECK. THEN H E PROCEEDED TO TOUCH THE VICTIM'S GEN ITAL AREA . THEN MR . PAUL SEES THAT THERE IS A EMPT Y BEDR OOM AND HE SUGGESTS THAT THEY RELOCATE TO THAT BEDROO M, S O THERE WOULD BE LE SS LI KELY TO BE HA ENED U PON B Y SOMEBODY ELSE. THEY MOVED IN TO THE BEDR OOM. MR. PAUL PROCEED ED TO E X POSE HIS GENI TALS TO THE VICTIM . AND THEN HE PROCEEDED TO R UB HIS PENIS ON THE VICTIM'S STOMACH . AFTER W HICH P OINT , ANYTHING FURTHER CAN HAP PEN . THE VICTIM AND MR . PAUL ARE DISCOVERED BY THE VICTIM'S SISTER AND HER BOYFRIEND , AND THOSE ARE REALLY ALL O F THE PERTINENT FACTS. THE STATE END UP CHAR GING THE VICTIM WITH S IX COUNTS OF LEWD AND LASCIVIOUS CRIMES .
DO YOU DISP UTE THAT THERE WERE TWO --
DO YOU DISPUTE THAT THERE WERE TWO SEPARATE INCIDENTS HERE? ONE THAT TOOK P LATES IN THE FOYER AND -- TOOK PL ACE I N THE FOYER AND ONE IN THE BEDROOM?
READ THAT PORTION OF THE FOURTH DC A'S OPIN ION. THERE ARE TWO CRIM INAL EPISODES, ESSENTIALLY , BECAUSE THERE WAS A SEP ARATE ISSUE GOOD THE LI VING ROOM AND A SEPA RATE ISSUE BETWEENWHAT HAENED IN THE BEDROOM . THAT OPINION .
CHIEF JUSTICE: MY UNDERSTANDING IS THAT THE DEFENDANT DOES NOT SEEM TO DISPUTE THAT, BUT THE STATE , AS I AM UNDERSTANDING IT , HAS TAKEN EACH AND EVERY SEPARATE ACT FROM THE KISSING TO THE TOU CHING TO THE EXHIBITION , AND CHA RGED THOSE AS SEPARATE COUNT S, AND IT IS YOUR POS ITION T HAT EACH OF THOSE ARE SEPARATE CRIMES ?
THAT'S CORRECT. AND THERE IS ABSOLUTELY NO REASON WHY WE CAN'T DO THAT , AND THE REASON FOR THAT IS , IN 19 88 , THE LEGISLATURE ISSUED A SE CTION 775.0212 SUBSECTION 1, WHICH IS A DOUBLE JEOPA RDY STAT UTE. IN THAT STATUTE , THEY ABOLISHED THE SI NGLE TRANSACTION RULE, AND BASICALLY WHEN THEY DID THAT, THEY SAID, QUOTE, WHOEVER IN THE COURSE O F ONE CRIM INAL TRANSACTION OR EPISODE , COMMITS AN AC TOR ACTS WHICH CONSTITUTE ONE OR MORE SEPARATE CRIMINAL OFFENSES UPON CONVICTION AND ADJUDICATION OF GUILT, SHALL BE SENTEN CED SEPARATELY FOR EACH CRIMINAL OFFENSE . NOW - -
CHIEF JUST ICE: WE HAVE ONLY A SHORT TI ME . LET'S GO T O 5-A AND 6-A, THAT IS THE LEWD O R LASCIVIOUS MOLE STATION AND LEWD OR LASCI VIOUS COND UCT . WHAT IS IT THAT 6-A HAS THAT 5-A DOES N'T HAVE ?
WELL --
CHIEF JUSTICE: OR VICE VERSA. IN OTHER WORDS, IT SEEMS TO ME THAT ANY VIOLATION OF 5- A WOULD NECESSARILY BE A VIOLATION OF 6-A.
WHICH MIGHT PERHAPS BE RELEVANT AS THE TOUCHING THAT WAS CHAR GED UNDER 5-A WAS THE SAME TOUCHING CHARGED UNDER 6-A, B UT IN THIS CASE THEY ARE COMPLETELY DIFFERENT TOUCHING AND WE HAVE TO GO BACK AND LOOK AT WHAT HAENED . THE LEGIS LATURE AM ENDED T HESTATUTE IN 199 9.
WOULDN'T YOU AG REE THAT THE EL EMENTS ARE THE SAME ? THAT THE ELE MENTS OF BOTH OF THOSE SECTIONS --
I WOULD AGREE THAT ONE OF THE ELEMENTS , THE CONDUCT COULD STEM , I AM SORR Y. ONE OF THE ELEMENTS OF MOLESTATION COULD BE SUBSUMED UNDE R THE ELEMENT FOR CONDUCT. SUCH THAT , IF IT WAS THE SAME ACT OF TOUCH ING , THEN THERE MIGHT HAVE BEEN A DOUBLE JEOPARDY VIOLATION HERE, BU T IN THIS CASE WE HAVE CHARGED DIFFERENT ACTS OF TOUCH ING .
CHIEF JUSTICE: IS IT Y OUR POSITION IN THIS CASE THAT , IF THE DEFENDANT HAD KISSED ONE SIDE OF THE NECK AND THEN AN OTHER SIDE AND THEN BACK TO THE SAME OTHER SIDE AND BACK AGAIN , BACK AG AIN, BACK AGAIN , BACK AGAIN SIX TIMES , THOSE WOULD BE SIX DIFFERENT CRIMES ?
THAT COU LD VERY WELL BE SO, YES , AND THE REASON FOR THAT IS BECAUSE YOU CAN COMMIT, YOU CAN CONVICT A SEPARATE ACT, EVEN IF THEY ARE COMMITTED DURING THE SAME CRIMINAL TRAN SACTION . NOW , YOU HAVE TO REMEMBER THAT WHAT HAENED IS , UP UNTIL 1999 , THE STATUTE IS A GENERAL STATUTE , OR A HODGEPODGE, COLLECTING ALL OF THE LEWD AND LASCIV IOUS OFFENSES UNDER A GENERAL HEADING , AND I N 1999 , THE LEGISLATION -- LEGISLATURE SEES THE TREND IN THE CASE LAW AND THEY RE CALL THAT THE SINGLE TRANS ACTION RULE HAS BEEN ABOLIS HED , AND THEY SAY WE NEED TO MAKE IT CLE ARER WHAT OUR LEGISLATIVE INTENT WAS, WHICH IS A PENALTY FOR EACH SEPARATE ACT THAT OCCURS DURING THE COU RSE OFTHE TRANSACTION , REGARDLESS OF WHETHER IT IS A SINGLE TRANSACTION OR NOT.
WELL , BE FORE -- BEFORE WEGET THERE , THOUGH , WHAT IS, WHERE ARE WE , IN OUR DO UBLE JEOPARDY ANALYSIS? DO WE ACT UALLY LOOK , NOW , AT THE CHARGING DOC UMENT , TO DETERMINE WHETHER A CRIME CONTAINS DIFF ERENT ELEMENTS, OR DO WE ONLY LOO K TO THE STATUTE T O DETERMINE WHETHER THERE ARE DIFFERENT ELEMENTS ?
WELL , BY ANALOGY , THERE ARE SEVERAL OTHER STATUTES WHE RE YOU CAN HAVE MISDEMEANOR AND FELO NY OFFENSES, BASED ON THE SAME ACT , AND THERE IS NOTHING , THERE IS NOTHING W RONG WITH CHARGING UNDER BOTH O F THOSE SUBSECTIONS , IF IT WAS EXACTLY THE SAME ACT , BUT , OKAY, THE C O CAINE , TRAFFICKING IN COCAINE , AND YOU ARE ALSO POSSESSING THE SAME COCAINE, AND THE ONLY DIFFERENCE BETWEEN TRAFFICKING IN COCAINE , YOU REQUIRE AN AMOUNT MORE THAN 20 GRAMS OF COCAINE , POSSESSION OF COCAINE IS UNDER 20 GRAMS, BUT IT IS EXACTLY THE SAME ACT AND THE SAME POSSESSION OF COCAINE , THERE IS A DOUBLE JEOP ARDY VIOLATION HERE, BUT THAT DOESN'T MEAN THAT THE STATUTES, THEMSELVES, ARE AUTOMATICALLY DOUBLE JEOPARDY VIOL ATIONS. IN THOSE SITU ATIONS I T DEPENDS ON THE FA CTS OF THE CASE. THIS IS THE SAME THING IN THIS SITUATION. IT DOES DEPEND ON THE FACTSOF THE CASE, BECAUSE WE HAVE CHARGED TWO SEPARATE TOUCHING. THEY ARE NOT THE SAME TOUCHING . THEREFORE THERE IS NO DOUBLE JEOPARDY VIOLATION IN THAT SENSE.
WHAT ABOUT UNDER T HAT SITUATION? THE FACTS OF THIS CASE INDICATE THAT THIS THE DEFENDANT -- THE DE FENDANT EXPOSED HIS PE NIS AT THE TIME THAT HE, A LSO , RUBBED IT AGAINST THE VICTIM'S STOMACH, SO , UNDER THOSE CIRCUMSTANCES , DO THOSE TWO ACTS, THE ONE OF EXHI BITION AND THE ONE OF CONDUCT , MERGE ?
NO. AND THE REASON FOR THAT, I WILL REFER YOU TO ANO THEREXAMPLE. SOMEBODY WHO IS CHARGED WITH POSSESSION OF A FIREARM BY A CONVICTED FELON AND SOMEBODY WHO IS, ALSO , CHARGED WITH MURDERING SOMEBODY BY SHOOTING THEM WITH THAT FIREARM A FTER DISPLAYING IT TO THEM .
ISN'T THAT BECA USE O F WHAT THE TWO STATUTES ARE AIMED AT , TH AT IS THAT T HEY ARE AIMED IN THAT SITUATION , WITH A FIREARM , TWO DIFFERENT EV ILS , ONE BEING A FELON ME RELY POSSES SING A FIREARM. HERE THE WHOLE I DEA IS THAT WE DON'T WANT DEFEND ANTS MOLESTING CHILDREN , BUT THE IDEA OF FOCU SING ON EVERY SINGLE PART O F THE ACT , F ROM THE TA KING THE PENIS OUT TO , IF IT WAS PUT ON THE ST OMACH AND THEN IF IT WAS MO CHED TO ANOTHER PART OF THE BODY , SEEMS -- MO VED TO ANOTHERPART OF THE BODY, SEEMS THATWE WOULD HAVE A LEWD RE DUCE SITUATION OF 1 00 DIFFERENTACTS FOR ONE SPECIFIC EVIL , SO HOW IS THAT? I DON'T SEE YOUR ANALOGY BEING A GO OD ONE , BECAUSE ITHINK HERE THESE ARE ALL AIMED AT THE SAME EVIL. WHAT IS YOUR RESPONSE TO THAT ?
WELL , THE FACT THAT THEY ARE ALL A PART OF THE SAME STATUTE AT THIS POINT , MAYBEA LITTLE CONF USING, BECAUSE REALLY WHAT THEY ARE IS SEPARATE CRIMES. AND THE WAY THAT YOU SEE THAT IS THAT YOU SEE THE LEGISLATURE HAS SEPARATED THE CRIMES. THEY HAVE GIVEN THEM FOUR DISTINCT NAMES. THEY HAVE GIVEN THEM FOUR DISTINCT DEFINITIONS , THEY HAVE GIVEN THEM DIS TINCT PENALTIES DEFINI TE, AND DEPENDING ON THE AGE OF THE VICTIM, IF IT RANGES ANYWHERE FROM A FIRST-DEGREE FELONY TO A THIRD-DEGREE NIL .
CHIEF JUSTICE: IS THAT BECAUSE THE LEGISL ATURE WANTED WHAT EVER THE HI GHEST CRIME WAS TO BE CHARGED, S O IF SOME BODY EXHI BITED THEIR PRIVATE PART , AND THAT IS ALL THAT HAENED , T HAT WOULD BE A CRIME. THEY DI DN'T , THEY WANTED TO MAKE SURE THAT ANY TYPE O F LEWD OR LASCIVIOUS CONDUCT WAS CHARGED AND PUNISHED , BUT THE IDEA OF THIS MULTIPLE HEAPING FOR ONE SPECIFIC EPISODE , I AM NOT SURE, WHERE WE GET THE JUMP TO THAT IN THIS , JUST BECAUSE OF THE CHANGE IN THE LEGISLATION.
WELL , A GAIN , YOU HAVE TO GO BACK TO THE FACT THAT THE SINGLE TRANSACTION RULE WAS ABOLISHED IN 1998 BY THE ENACTMENT OF 775. 02 SUBSECTION 4, AND THAT IS SPECIFICALLY SAYING THAT THE SEPARATE ACT, EVEN IF THEY ARE COMMITTED DURING THE COURSE AFTER SINGLE TRANSACTION, CAN BE PU NISHED SEPARATELY.
THE DIST RICT COURT DID NOT RELY ON THE SAME TRANSACTION RULE, D ID IT ?
WELL , Y ES, THEY DID . WHAT HAE NED, WELL , THEY RECOGNIZED THAT THERE WAS A TEMPORAL AND SP ATIAL B REAKBETWEEN THE ACTS THAT OCCURRED IN THE LIVING ROOM AND THE ACTS THAT OCCURREDIN THE BEDROOM , BUT WHAT THEY DIDN'T RECOGNIZE WAS THAT THE ACT IN THE LIVING ROOM, THE TWO ACTS IN THE LIVING ROOM WERE, ALSO , SEPARATE ACTS THAT WERE CHARGED UNDER SUBSECTIONS OF THE STATUTE.
SO IS THAT YOUR CLAIM HERE, IS A THAT THIS DISTRICT COURT, NOW , HAS RETURNED TO ENFORCING THE SAME TRAN SACTION RULE THAT THE LEGISLATURE ABOLISHED ? IS THAT , REA LLY , THE GIST O F YOUR CLAIM HERE ?
THE GIST , YES , AND I WAS GOING TO POINT OUT THE LEGISLATURE HAD NOTICED THE TREND OF CASES WHICH SEEMS LIKE A TREND BACK TO THE SINGLE TRANSACTION RULE , EVEN THOUGH THAT RULE IS ABOLISHED IN 775.021, SO THE LEGISLATURE BASI CALLY SA ID, IN 1999 , THAT WE ARE W RONGSO WE ARE GO ING TO MAKE IT V ERY CLEAR THAT THEY SUFFERED AND NE ED TO BE PUNISHED SEPARATE LY AND THAT IS WHEN THEY AM ENDED T HESTATUTE.
WH Y IS THE DISTR ICT COURT , THE DISTRICT COURT ACT UALLY , ITS HO LDING WAS WE DEEM THE ACTS LEADING U P TO AND OCCURRING, AS PART OF THE MOST SERI OUS IN E ACH ROOM , TO B E PERMISSIVE , LE SSER OFFENSES ? WHY IS THAT INCO RRECT ?
WELL , IF YOU LOOK AT THE STATUTE , YOU WILL REALIZE THAT, REALLY , THEY ARE RELYING ON ANY LESSER-INCLUDED OFFENSES IN THE STATUTE. THEY ARE ROUGHLY EQUAL OFFENSES . WITH, PERHAPS , THE EXCE PTION OF THE MOLESTATION AND THE CONDUCT . SUBSECTION OF THE STATUTE WHICH, UNDER SOME CASES I T MIGHT BE POSS IBLE TO COMMIT DOUBLE JEOP ARDY, B Y CHARGING SOMEBODY UNDER MOLESTATION AND UNDER CONDUCT , BUT ONLY IF THEY ARE COMM ITTING EXACTLY THE SAME ACT OF TOUCHING. FOR EX AMPLE IF THEY CHARGED THE DEFENDANT UNDER MOLESTATION PART OF THE STATUTE AND UNDER THE CONDUCT PART OF THE STATUTE , FOR THE SINGLE ACT OF TOUCH ING HIS PENIS , I AM SO RRY , OF TOUCHING THE VICTIM'S PEEPIES , GENITAL AREA , THEN ON -- PENIS , GENI TAL AREA , THEN THAT M IGHT BE DOUBLE JEOPARDY. THE STATE HAS NOT CHARGED THAT. THE STATE HAS CHARGED TWO SEPARATE TOUCHING , AND IT IS NOT DOUBLE JEOPARDY IN THAT SITUATION.THERE ARE TWO DIFFERENT ACTS HERE, AND, AGAIN, THE LEGISLATURE HAS RECOGN IZED THAT, HO WEVER MANY ACTS THERE ARE , IF THOSE ACTS CONSTITUTE CRIMINAL OFFE NSES , THEN THEY NEED TO BE PUNISHED SEPARATELY, REGARDLESS OF WHET HER THEY ARE COMMITTED D URING THE SAME CRIMINAL TRANSACTION , AND I WOULD POINT OUT THAT THERE IS A GR EAT POLI CY REASON FOR NOT TAKING THE DEFENDANT'S POSITION IN THIS CASE, AND THE RE ASON FOR THAT IS, IF YOU ARE GOING T O START LUMPING ALL OF THIS STUFF TOGETHER, YOU ARE GOING TO ESSENT IALLY ENCOURAGE THE DEFENDANT TO COMMIT M O RE AND MORE EGREGIOUS ACTS DURING THE COU RSE OF A SINGLE TRANSACTION.
IS N'T THIS SORT --
THEY GET TWO OFFENSES FOR THE PRICE OF ONE , SO TO SPEAK.
CHIEF JUSTICE: IS THIS ANALOGOUS TO A SITUATIONWHERE THERE IS A ROBBERY , AND IN THE COUR SE OF THE ROBBERY THEY TAKE , OUT OF THE PER SON'S POCKET , A , FIRST THEY TAK E THE WALL ET , THEN THEY TAKE THE K E YS. THEN THEY TAKE THE CASH . IN THAT SITUATION , IS I T YOUR POSITION THAT THE STATE COULD CHARGE THREE DIFFERENT ROBBERIES ?
UNDER THE ROBBERY STATUTE , I AM NOT QUITE SURE A BOUT THE ROBBERY STATUTE. I DO K NOW ABOUT THE SO CIAL POLICY BE HIND THE S E XUAL BATTERY STATUTE AND BEHIND THE LEWD AND LASCIV IOUS STATUTE, WHICH SEXUAL POLICIES ARE ESSE NTIALLY IDENTICAL. THAT SEXUAL POLICY SAYS THAT SOCIETY LOOKS UPON SEXUAL CRIMES AS M UCH MORE IMPORTANT THAN THE GENERAL CRIMES OF ROBBERY OR W HAT HAVE YOU . THOSE ARE CRIMES AGAINST PEOPLE THAT , CA USE M ORE DAMAGE TO SOCIETY THAN JUST ROBBERY OFFENSES, AND THOSE CRIMES ARE THE ONES THAT ARE MOST DESERVING OF MORE SEVERE PUNISHMENT AND MULTIPLE PUN ISHMENT S.
CHIEF JUSTIC E: I WAN T TO REMIND YOU YOU ARE IN YOUR REBUTTAL .
OK AY.
IF WE ACCEPT YOUR THE ORY , WHAT WILL I T DO TO THE LAW OF LESSER-INC LUDED OFFENSES? IN OTHER WO RDS , MORE PRECISELY, IF WE ACCEPT YOUR THEORY , WHY WOULDN'T THE STATE BE ALLOWED TO SEPARATELY CHARGE NOT ONLY THE HIGHEST OFFENSE THAT AROSE OUT OF A CIRCUMSTANCE , BUT, ALSO , ALL OF THE LESSER-INCLUDED OFFENSES THAT ARE A ROWS OUT O F THE OFFENSE, AND SEPARATE -- THAT AROSE OUT OF THE OFFENSE, AND SEPARATELY CHARGE PUNISH THE DEFENDANT FOR EACH OF THOSE.
WELL , THEY COULD DO THAT AND THEY DO DO T HAT IN O THERCASES. WHAT HAENS IS, IF IT IS EXACTLY SAME ACT THAT IS CHARGING ALL OF THESE GREATER AND LESSER-INCLUDED OFFENSES UNDER , THEN WHAT HAENS IS AT THE E ND OF T HECASE, A DI RECTED VER DICT FOR WHICH EVER COU NTS THE JURY FINDS THE DEFENDANT GUILTY OF, BUT THAT IS IF IT IS EXACTLY THE SAME ACT. FOR EXAMPLE IF IT IS THE SAME TOUCHING OF THE P ENISIN THIS CASE , BUT , AGAIN , THOSE ARE DIFFERENT TOUCH INGS HERE, SO WHAT HAEN S HERE IS AN IMPACT ON YOUR QUESTION. I HOPE I HAVE ANSWE RED YOU.
THANK YOU.
OKAY.
THANK YOU VERY M UCH.
CHIEF JUSTICE: MS. GRIFFIN.
GOOD MORNING. YOUR HONOR. COUNSEL.MY NAME IS ELLEN GRIFFIN. I AM WITH THE PUB LIC DEFENDERS OFFICE, AND I REPRESENT THE RESPONDENT IN THI S CASE, MR . STEVE PAUL. AS TO THE FACT OF THE CASE , THE STATE HAS PR ETTY MUCH COVERED THAT AND I DON'T FEEL A NEED TO REITERATE THEM, EXCEPT TO THE FACT THAT THE ACTS ALLEGE D IN THE LIVING ROOM AND THE ACTS ALLEGED IN THE BEDR OOM OCCURRED SIMULTANEOUS. IT IS NOT THAT - -
CHIEF JUSTICE: THEY COULDN'T HAVE OCCURRED SIMULTANEOUS, BECAUSE THEY HAD TO HAVE GONE FROM ONE ROOM TO THE OTHER.
THE TWO ACTS IN THE LIVING ROOM OC CURRED SIMULTANEOUS WITH EACH OT HER, THE KISSING AND THE TOUCHING , THEN THE TWO ACTS IN THE BEDROOM OCCURRED AT THE SAMETIME.
WELL , THE STATE DO ESN'T ARGUE THAT THOSE WERE SEPARATE CRIMINAL HE OLD , ONLY THAT THEY OCCURR ED IN THE SAME -- EPISODES , O NLY THAT THEY OCCURRED IN THE SAME CRIMINAL ACTS THAT CAN BE PUNISHED SEPARATELY.
YES, AND THE STATE RE LIES ON 775.021 FOR THAT , AND AS FAR AS IT GOES , SEPARATE ACTS COMMITED IN A SINGLE TRANSACTION AT SOME PO INT MAY BE PUNISHED , BUT YOU HAVE TO LOOK F URTHER D OWN INTO THE STATUTE , TO THE EXCEPTION S TO 775.021, W HICHARE LISTED, THOSE BEING OFFENSES WHICH , WELL , THE FIRST BEING PR ETTY MUCH NECESSARILY INCLUDED ACT , OFFENSES WHICH ARE IDENTICAL TO EACH OTHER. THE SECOND EXCEPTION, WHICH WOULD BE THE CORE OFFENSE , DEGREE VARIANCE, AND THE THIRD EXCEPTION WOULD BE THE PERMISSIVE LESSER-INCLUDED FACTS.
WELL , BEFORE YOU G ETTHERE, YOU MAKE THE ANALYSIS REQUIRES THE DETERMINATION AS TO WHETHER IT IS CLEAR THAT THE LEGISL ATURE INTENDED THERE TO BE SEPARATE PUNISHMENTS FOR EACH CRIME. CORRECT?
CORRECT.
AND WHEN THE LEGISLATURE CAME ALONG AND AM ENDED THIS STATUTE , IN 1999 , WHY ISN'T IT CLEAR THAT THE LEGISLATURE IN TENDED MOLESTATION , EXHI BITION ISM , SEXUAL BAD BA TTERY , THOSE ---SEXUAL BATTERY , THOSE FOUR TO BE SEPARATELY PUNISHED?
BECAUSE THEY DI DN'T S AYSO.
WELL, THEY SET TH EM U P THAT WA Y. IT HAD BEEN SET UP THAT WAY BEFORE. THE LEGISLAT URE CAME ALONG AND SAID THIS IS WHAT CONSTITUTES THIS CRIME IN EACH PARAGRAPH. ISN'T THAT WHAT HAENED?
WELL, EACH OF THOSE , EVERY OFFENSE THAT I S CURRENTLY IN THIS STATUTE WAS, ALSO , PUNISHED IN THE PREVIOUS 19 84 STATUTE. AND LOOKING AT THE HI STORY OF THE WAY THE STATUTE EVOLVED, WHEN THE LEGISLATURE HAD AMENDED THE STATUTE PREVIOUSLY , THEY HAD SPECIFICALLY STATED THEIR INTENT. THERE HAD BEEN PREAMBLES , LIKE THE ' 84 STATUTE , THEY SAID WHEREAS IT ISN'T OUR INTENT TO MAKE SURE THAT PRIOR CHASTITY IS NOT A SUBJECT, THAT VICTIM CON SENTDOES NOT IMPA CT ON THAT. THAT IS NOT WHAT HAENED WHEN THEY REORGANIZED THIS STATUTE IN 1999. IT WAS DONE IN A , AS A B ROAD GROUP. IT WAS A CHILDREN 'S PROTECTION ACT OF 19 IS 9 9. THEY -- OF 1999. THEY DIDN'T REORGANI ZE J UST THIS STATUTE. THEY AMENDED S E VERAL STATUTES. THEY DIDN'T SAY WE WANT THEM PUNISHED SEPARATELY. THEY SIMPLY IN OUR OPINION , REORGANIZED THEM, M ADE IT CLEARER, PERHAPS, FOR CHARGING PURPOSES, BUT THEY DID NOT ANYWHERE SAY THAT THEIR INTENT WAS TO CHARGE SEPARATELY, LIKE THEY HAVE IN SOME OTHER STATUTES.
THEY DID HAVE INTENT TO CREATE SEPARATE CRI MES.
YES, BUT NOT NECESSARILY TO CHARGE THEM SEPARATELY . FOR INSTANCE IN THE SITUATION AFTER CARJACKING AND ROBBERY. THAT IS A SITUATION WHERE THE LEGISLATURE SPECIFICALLY STATED THEIR INTENT. THESE ARE TO BE CHARGED SEPARATELY. THESE ARE TO BE PUNISHED SEPARATELY. THEY SAID THAT IN THEIR PREAMBLE THEY C ITED TO THE FBI ST UDIES , BUT TO THE CASES SUCH AS ROBBERY AND GRAND THEFT , THEY ARE SEPARATE CHARGES BUT THEY NEVER STATED THEY ABSOLUTELY NEEDED TO BE PUNISHED SEPARATELY.
CAN YOU RESPOND TO THE STATE'S ARGUMENT ON THE ALICATION OF SECTION 775.0214, THE BLOCKBERGER , AND THE STATES STATE'S POSITION IS ESSENT IALLY IF YOU COMMIT ONE ACT , ONE SPECIFIC CONDUCT, YOU CAN'T BE, LET'S SAY , PROSECUTED ON BOTH 5 -5 AND 6 - A -- 5-A AND 6-A UNDER THE EXCEPTIONS , BECAUSE IT WOULD REQU IRE THE IDENTICAL ELEMENTS OF PROOF. IT IS ONLY ONE A CT.
CORR ECT.
HOWEVER, W HERE THERE A RESEPARATE ACTS , KI SSING AND TOUCHING , THAT NO LO NGER BRINGS IT WITHIN THE EXCEPTIONS, BECAUSE THERE ARE , YOU NO LONGER RE QUIRE SEPARATE ELEMENTS OF PROOF. THERE ARE DIFFERENT FACTS TO PROVE EACH ONE.
AS TO 5 AND 6 , THE CONDUCT IN THE MO LESTATION , IT WOULD BE IMPOSSIBLE TO COMMIT THE CONDUCT , WITHOUT THE MOL ESTATION , THE MOLESTATION WITHOUT THE CONDUCT.YOU CAN'T HAVE ALLUDE TOUCHING OF A SP ECIFIC BO DY PART WI THOUT ALLUDE TOUCHING OF THE BO DY.
THAT IS WHY, IF THERE WAS ONLY ONE ACT, YOU COU LDN'T CONVICT AND SENT ENCE FOR BOTH 5-A AND 6-A , BUT THE STATE IS SAYING WHERE THERE IS TWO ACTS , YOU CAN CONVICT ONE FOR 5-5 AND AND FOR 6 -- -5 -A AND ONE FOR 6-A.
YOU CAN ANALOGIZE THIS TO A ROBBERY IF SOME ONE T AKESMY KEYS AND WA LLET AND PURSE AND THEY TAKE THEM ALL AT THE SAME TIME, THAT IS ST IL L ONE GRAND THEFT. IT IS NOT A S E RIES OF GRAND THEFTS.
CHIEF JUSTICE: UNDER THAT ANALYSIS AND, AGAIN , I K NO W THAT WE HAVE HAD A COUPLE OF CASES WITH THIS. IF YOU TAKE ROBBERY , EVERY SINGLE, ROBBERY IS A IMED AT PROTECTING THE VICTIM, SO YOU , IF THERE ARE TWO SEPARATE VICTIMS , THERE IS TWO , CAN BE CHARGED WITH TWO ROBBERIES , ABOUT THE FACT THAT THERE ARE MULT IPLE ITEMS TAKEN IN THE COUR SE OF A SINGLE ROBBERY , IS, THE CHARGE IS ONE ROBBERY . THE IDEA OF A CONTINUING OFFENSE IS , REALLY , AS WE GO INTO SEXUAL CRIMES , AND WE WOULD HAVE TO G O BACK IN TIME, BUT WHAT THEIR POINT IS, I S THAT THE EXHIBITION OF THE PENIS COULD BE , IS A SEPARATE CRIME , AND THE TOUCHING IS A SEPARATE CRIME , BUT EACH KISSING IS A SEPARATE CRIME , AND WHERE IS IT IN OUR JURISPRUDENCE THAT WE HAVE LOOKED AT THIS T YPE OF SITUATION, AND I GU ESS I T WOULD BE ANALO GOUS TO , O R IS IT ANALOGOUS TO SOMEONE WHO GETS IN A FIGHT, IS EVERY PUNCH A SEPARATE ASSA ULT OR DO YOU, OR ARE AL L OF THE PUNCHES ONE AS SAULT ? THAT IS WHAT WE HAVE TO L OOK AT IN THE AREA OF CHILD MOLESTATION , AND THE POLICY OF THE STATE WAS THE INTENT THAT EVERY T I ME THERE WAS A KISS, NO MA TTER WHETHER IF THIS WE NT ON FOR A DAY WHERE THEY KEPT SOMEBODY CAPTIVE, THAT THERE WOULD BE LITERALLY COULD BE MA YBE 1,000 ACTS, AND EACH OF THOSE WERE INTENDED TO BE CHARGED SEPARATELY. WHERE DO WE LOOK TO MAKE THAT DECI SION, WHETHER THIS IS MORE LIKE ROBBERY OR ASSAULT OR IS IT BECAUSE IT IS A MOLE STATION A FTER CHILD , THAT THE LEGISLATUR E'S INTENT WAS TO CHARGE AS MA NY ACTS AS COULD POSSIBLY BE CHARGED?
HISTORICALLY , OF COURSE , THE FIRST T O LOOK AT IS SINGLE EPISODE. THREE FACT ORS. IS THERE ONE VICTIM IN THIS CASE, YES . DO THE ACTS OCCU R IN THE SAME PLACE? YES . AND IS THERE A TEMPORAL BREAK IN THE ACTS? NO. SO THAT IS THE F IRSTANALYSIS AS TO THE SINGLE EPISODE, AND I BELIEVE THAT COMES FROM RUSSO. LOOKING BACK HISTORICALLY AS TO HOW THESE CASES HAVE BEEN PUNISHED, IN A VARI ETY OF CASES , CAUSE OF HE WOULD , EDIE, MAZARUS , ACTS T HAT OCCUR, SEPARATE TOUCHINGS THAT OCCUR WITHIN ONE TEMPORAL SITUATION WITHOUTBREAK, HAVE BEEN CONSIDERED DOUBLE JEOPARDY. TOUCHING OF SE VERAL DIFFERENT BODY PARTS AT ONE POINT IN THOSE CASES , THE COURTS HAVE FOUND THAT THIS IS ONE OFFENSE THAT CAN BE PUNISHED WITH ONE PUNISHMENT, SO HIST ORICALLY THEY HAVE BEEN PUNISHED AS A SINGLE OFFENSE.
HOW DOES THAT COM PLY WITH AM 75.021-4 , WHERE THE EXPRESS PURPOSE OF THE LEGISLATURE WAS, AND THEY SAY IT, WHOEVER IN T HECOURSE OF ONE CRIMINAL TRANSACTION OR EPIS ODE, SO WE ARE CLEAR THEY ARE ALREADY TALKING ABOUT ONE EPISODE , COMMIT S AN ACTOR ACTS WHICH CONSTITUTE ONE OR MORE SEPARATE CRIMINAL OFFENSES , U PON CONV ICTION AND ADJUDICATION OF GU ILT , SHALL BE SENT ENCED SEPARATELY FOR EACH CRIMINAL OFFENSE. SO HOW DOES YOUR THEORY JIVE WITH THE EXPRESSED PURPOSEOF THE LEGISLATURE AND THE BLOCKBERGER IS SIMPLY DETERMINING THE LEGISLATURE'S INTENT?
YOU HAVE TO GO FORWARD DOWN TO THE EXCEPTIONS FROM THAT THAT ARE LI STED BE FORE, AND WE WOULD AR GUE THAT A S TO 5 AND 6 , THESE ARE NECESSARILY INCLUDED LESSER OFFENSES. THEY ARE COMPLE TELY SUBSUMED. YOU CAN'T COMMIT ONE WITHOUT THE OTHER. ALSO WE --
WE CIRCLE BACK TO MY PREVIOUS QUESTION, WAS I AGREE WITH YOU IF IT WAS ONE ACT F IT WAS ONLY THE KISSING, THEN THEY WOULD BE WHETHER YOU CALL THEM LESSER-INCLUDED S OR WHATEVER YOU ARE RE QUIRING I D ENTICAL ELEMENTS OF PROOF , BUT WHEN THERE ARE TWO SEPARATE ACTS, WHY ISN'T THE LEGISLATURE 'S INTENT AS EXPRESSED IN 775.021 WHERE THERE IS A KISSING AND TOUCHING, T O SENTENCE SEPARATELY FOR EACH OF THOSE?
THESE ARE ALL CORE VARIANT S OF A SEPARATE OFFENSE . SUBSUMED FROM THE ORIG INAL CORE VARIETIES YANT S, FROM THE SAME CHANTTORY ADDRESS THE SAME EVIL , THE ORIGINAL HOMICIDE, THEFT , BATTER Y, IN THIS CASE ACTS THAT COULD BE LEADING TO THE N ATURE AFTER SEXUAL BATT ERY , BUT THEY WEREN'T LIMITED TO THE ORIGINAL ONES SET OUT IN SERMON. THEY HAVE BEEN EXPANDED TO A GREAT MANY DIFFERENT ACTS, AND I WOULD GO BACK, AGA IN, TO, I BEL IEVE ROBBERY WITH A WEAPON AND GRAND THEFT A UTO. THE TAKING OF THE ROBBERY AND THE AU TO, THOSE COULD B E CHARGED SEPARATELY , BUT WHEN ANDAL SI ZED UNDER THE -- BUT WHEN ANALCIZED UNDER THE CORE VARIANT S, IT CAN BE PUNISHED AS ONLY ONE OFFENSE.
THAT IS NOT WHAT WE H ELD -- HOW DO YOU EXP LAIN "CRUELER" UNDER THAT ANALYSIS, IN WHICH WE HELDTHAT YOU COULD BE CHARGED FOR THE ROBBERY OF THE PROPERTY AND THE CA R?
CR UELER IS DIFFERENT IN THAT , IN CRULLER , THE LEGISLATURE UNLIKE THE OTHER STATUTES, SPECIFICALLY STATED THEIR INTENT IN THE PREAMBLE, THAT THOSE WERE TO BE CHARGED SEPARATELY .
WELL, IT DIDN'T SAY IT IN THE PREAMBLE. IT SAID IT, I MEA N, WHAT WE HELD WAS THAT THERE WAS A CLEAR INTENTION THAT CARJACKING BE A SEPARATE CRIME .
AND THAT WAS BASE D ON THE STATUTE FROM THE LEGISLATURE.WE WOULD ARGUE THAT , IN THIS STATUTE, AND IN THE OTHER ONES THAT WE ARE DISCUSSING,THAT THE LEGISLATURE DID NOT MAKE SUCH AN INTENT CLE AR.
WELL, THAT IS WHERE THE FIFTH DIST RICT DISA GREED WITH YOU, BECAUSE JU DGE SOWALIA HELD THAT , BY B REAK THESE INTO FOUR DIFFERENT CRIMES, THAT WAS THE CRULLER SITUATION.CORRECT?
CORRECT .
CHIEF JUSTICE: JUSTICEQUINCE.
IN THE FRONT RO OM OF T HEHOUSE, THERE WAS KISSING , AND THEN THERE WAS TOUCHING FROM THE OUTSID E OF THE CLOTHING , CORR ECT?
YES.
SO WHAT IS THE CORE? YOU SAY THEY ARE JUST VARIANCES OF THE SAME CORE OFFENSE, SO WHAT IS THE CORE OFFENSE HERE?
THE CORE OFFENSE IS LE WD AND LASCI VIOUS BEHAVIOR UPON OR IN THE PRESEN CE OF A CHILD.
BUT WHEN YOU ACT UALLY LOOK AT THE STATUTE, WE DON'T JUST HAVE LEWD AND LASCIVIOUS BEHA VIOR ANYMO RE. WE ACTUALLY HAVE L EWD AND LASCIVIOUS BATTERY , LEWD AND LASCIVIOUS MOLE STATION , LEWD AND LASCIVIOUS CONDUCT , LEWD AND LAS CIVIOUS EXHIBITION , SO WE DON'T REALLY JUST HAVE THAT ONE LEWD AND LASC IVIOUS ANYMORE, SO WHY ISN'T , DESPITE YOUR SAYING IT IS A CORE OFFENSE , IF YOU HAVE A SITUATION WHERE A DEFENDANT ACTUALLY DOES SEVERAL THINGS THAT ARE CO VERED BY THIS ACT? I CAN UNDERSTAND PART 5 AND PART 6 , WHICH ARE, REALLY , BOTH TOUCHING ACTS, BUT THEN WHEN YOU GET TO THE OTHER ONES, WHICH ARE BATTERY , YOU GET TO THE OTH ER ONES , W HICH ARE EXHIBITION , WHY ISN'T , I AM HAVING A HARD TIME TR YING TO FI GURE OUT WHY THEY ARE NOT DIFFERENT CRIMES .
IF YOU CAN ANALOGIZE IT TO PERHAPS A HOMICI DE STATUTE, WHERE YOU HAVE FIRST-DEGREE. YOU HAVE MANSLAUGHTER . YOU HAVE CUL PABLE NEGLIGENCE. THOSE ARE ALL SET OUT AND LABELED SEPARATELY , AL SO, BUT THEY ARE STIL L ALL THE SAME CORE OFFENSE , AN D THEY ARE ALL STILL ADDRESSED TO THE SAME EVIL .
BUT YOU EVEN TAL KED ABOUT LESSER-INCLUDED OFFENSES . WHEN YOU LOOK AT T HIS STATUTE, NO NE OF THESE SE EM TO BE REALLY LESSER-INCLUDED OFFENSES, BECAUSE ALL OF THEM ARE SECOND-D EGREE FELONIES OR THIRD-DEGREE FELONIES. ONE IS EVEN A FIRST-DEGREE FELONY , BUT ALL OF THEM A REBROKEN DO WN INTO SECOND-DEGREE FELONIES AND THIRD-DEGREE FE LONIES, DEPENDING UPON THE AGE O F THE ACTUAL VICTIM, SO IF THE VICTIM IS OVER THE AGE OF TWELVE, AND YOU ACTUALLY TOUCH THE VICTIM ON ONE OF THE GENITAL AREAS , AND THE VICTIM IS OVER THE AGE OF TWELVE, AND YOU EXHI BIT YOUR SEXUAL PARTS TO THAT VICTIM , BOTH OF THOSE ARE SECOND-DEGREE FELONIES OR THIRD-DEGREE FELONIES , O NEOF THOSE , SO THEY DON'T SEEM TO BE LESSER OFFENSES THAN THE OTHER .
IN THAT ANALYSIS , DIRECTLY AS TO SEPARATE DEGREES, NO , BUT YOU CAN LOOK AT, ALSO , THEY ARE ALL PUNISHED AS DIFFERENT LE VEL OFFENSES, NOT JUST AS DIFFERENT DEGREES.
DIFFERENT LEVEL , MEANING?
UNDER THE CRIMINAL PUNISHMENT CODE. EXHIBITION IS A LEVEL 5 . CONDUCT IS, I BELIEVE , A LEVEL 7. MOLESTATION IS A LEVEL 9. AND WITH OUR DEGREE --
SO WE NEED TO LOOK BEYO ND THE FACT THAT THE STATUTE ACTUALLY SAYS IT IS A SECOND-DEGREE, THAT EACH ONE IS A SECOND -DEGREE FELONY.
PARTICUL ARLY IN COMBINATION WITH OUR ARGUMENT WITH A DEGREE VARIANT , WHICH IS CLEAR THAT THOSE DO NOT HAVE TO BE FIRST, SECOND OR THIRD-DEGREE FELONIES , TO B E VARIANTS ON THE SAME OFFENSE.
CHIEF JUSTICE: HAVE YOU CONCEDED THAT THE TWO LI VING ROOM AND BED ROOM CONSTITUTE A BR EAK , SUFFICIENT FOR THERE TO BE A SEP ARATE TRANSACTION?
THAT IS NOT BE FORE THIS COURT .
CHIEF JUSTICE: O K AY .
YES. I F THE COURT HAS NO OTHER QUESTIONS , WE WOULD RESPECTFULLY - -
CHIEF JUSTICE: I DO HAVE ONE OTHER PRACTICALQUESTION. IN THESE SITUATIONS , JUST REFRESH MY RECOLLECTION , EVEN THOUGH ALL OF THESE MULTIPLE ACTS ARE CHARGED AND SENTENCED SEPARATELY, D O THE SENTENCES R UN CONCURRENTLY?
IN THIS CASE THEY DO , YES , YOUR HO NOR. WE RESPECTFULLY ASK THI S COURT TO AFFIRM THE DECISION OF THE FOURTH DISTRICT COURTOF AEAL AND DISA ROVE THAT IN THE FI FTH. THANK YOU.
CHIEF JUSTICE: RE BUTTAL .
THANK YOU VERY MUCH. I WOULD LIKE TO M AKE A COUPLE OF POINTS IN REBUTTAL. FIRST OF ALL , THE FACT THAT THERE IS NO MA GIC WO RDS OR IN CANTAT ION OR COMMUNICATION OF THE PHRASE "LEGISLATIVE INTENT AND FINDING." THE BEST EVI DENCE OF LEGISLATIVE INTENT IS OBVIOUSLY THE AMENDMENT OF THE STATUTE, ITSELF, BECAUSE IF THE LEGISLATURE WAS SATISFIED WITH THE WAY THE FOURTH DCA OR THE OTHER COURTS WERE TREATI NG THE STATUTE AND FINDING ONLY ONE OFFENSE TO BE PERMIS SIBLE , THEY WOULDN'T HAVE BOTHERED TO CHANGE THE STATUTE THE WAY THEY DID AND SET THEM OUT IN SEPARATE OFFENSES A ND GIVE THEM SEPARATE NA MES AND SEPARATE PENALTY , AND SEXUAL BATTERY STATUTE , THE RE ARE NO MAGIC WORD S IN O URSTATUTE , AND THERE IS NO QUESTION THAT YOU CAN CONVICT A DEFENDANT OF ORAL SEX AND ANDAL SEX , VA G-- AND ANAL SEX, VAG INAL SEX , REGARDLESS OF WHETHER THEY OCCURRED IN THE S AME TRANSACTION, MO MENTS AP ART, SO THE CASE REALLY IS VE RY SIMILAR TO THE SEXUAL BATTERY STATUTE. THE SOCIAL POLI CY BEH IND BOTH IS THE SA ME. THERE IS REA LLY NO REASON TO TREAT THE TWO STATUTES DIFFERENTLY FOR PURPOSES O F CHARGING AND CONVIC TING MULTIPLE OFFENSES , AND ONCE AGAIN , THE DEFENDANT'S INTERPRETATION ME RELY ENCOURAGE S A DEFENDANT TO COMMIT MORE OFFENSES BECAUSE THEY CAN DO IT FOR THE PR ICE OF ONE , AND -- CHIEF BEING THE SAME AGAIN , DO YOU AG RE E OR WHAT IS THE SITUATION WITH A BATTERY IN THE COURSE OF A FI GHT AND TH ERE ARE TEN DIFFERENT PUNCHES? IS THAT TEN DIFFERENT CRIMES ?
IT IS A GRAY AREA , BUT THE LEGISLATURE HAS SPECIFICALLY SAID THAT WE ARE GOING TO PUNISH FOR EACH ACT THAT CONSTITU TES A SEPARATE OFFENSE, S O IT IS POSSIBLE. YES . IT DOESN'T NO RMALLY HAEN BECAUSE PROSECUT ORS DON'T PREFER TO, QUOTE, OVERCH ARGE THEIR VICTIM OR THEIR DEFENDANTS, UN QUOTE , BUT I T IS PO SSIBLE . THE THING IS , WHETHER IT I S CONSIDERED TO BE THE SAME ACTOR NOT, THE SAME PUNC HING . BUT IN THIS CASE , W E HAVE GOT SEPARATE ACTS , SEPARATE TOUCHINGS, SO THAT PARTICULAR ANALOGY IS NOT IN ISSUE IN THIS PARTI CULAR CASE. OKAY. THE LEGISLATURE , WE WERE MAKING A POINT ABOUT LESSER-INCLUDED OFFENSES, BUT LESSER-INCLUDED OFFENSES ARE REALLY RE LEVANT WHERE THERE IS ONLY ONE ACT, A ND THAT IS THE SAME ACT THAT HAS BEEN U SED THROUGHOUT, BUT IN THIS CASE WE HAVE GOT DIFFERENT ACTS OF TOUCHING , SO, AGAIN , LESSER-INCLUDED OFFENSES ANALOGY REALLY DOESN'T AL Y TO THIS CASE . AND WITH RE GARD TO, I THINK , ROBBERY, THE TAKING OF A PURSE AND CHARGING THE DEFENDANT FOR TAKING T HEPURSE AND THEN TAKING A LL OF THE THING THAT IS ARE INSIDE THE PURSE, THE REASON THAT DOES NOT HAVE SOMETHING THAT YOU CAN CHARGE SEPARATELY I S BECAUSE THE ROBBER DO ESN'T NECESSARILY KNOW WHAT IS INSIDE THE PURSE THAT HE IS TAKING THERE. IS NO SEPARATE INTENT TO TAKE EACH OF THE PARTIC ULAR ITEMS THAT ARE IN THE PURSE , SO THERE IS ONE INTENT , WHICH IS TO TAK E THE PURSE ITSELF. NOW, IN OUR CASE YOU HAVE GOT SEPARATE INTENT. THE DEFEN DANT KNOWS EX ACTLY WHAT HE IS DOING. HE IS TOUCHING THE VICTIM. HE KNOWS THAT. HE HAS AN INTENT TO DO. THAT HE IS TOUCHING THE VICTIM 'S GENI TALS . HE HAS AN INTENT TO DO THAT. THAT IS SEPARATE.HE IS EX POSING HIM SELF. AGAIN AN OTHER SEPARATE INTENT. SO --
CHIEF JUSTICE: I WANT T O REMIND YOU YOUR T IME HAS EXPIRED .
IF THERE ARE NO OTHER QUESTIONS , THE STATE WOULD RESPECTFULLY URGE THIS COURTTO RE VERSE THE DECISION OF THE FOURTH DCA , INSOFAR AS REVERSE HIS CONV ICTION AND TO AFFIRM ALL FOUR OF THE CONVICTIONS HERE. THANK YOU VERY M UCH.
CHIEF JUSTICE: THANK YOU .