Berlin v. State
2011 Fla. App. LEXIS 16274
| Fla. Dist. Ct. App. | 2011Background
- Appellant Aaron Berlin appeals judgments and sentences for two counts of sexual battery on a person under twelve and one count of lewd or lascivious molestation.
- State concedes error that the convictions violate double jeopardy.
- All three offenses arose from a single criminal episode.
- First sexual battery count was vaginal penetration; second sexual battery count was anal penetration by Berlin's penis.
- Leud or lascivious molestation had no separate act; it stemmed from the same episode as the two sexual battery acts.
- Trial court imposed concurrent life sentences; Berlin moved to correct illegal sentence, which the court denied; on appeal the conviction for lewd molestation was vacated.
- Court reverses only the lewd/molestation conviction; affirms the two sexual battery convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does double jeopardy require reversal? | Berlin | State | Yes; lewd/molestation conviction reversed |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (1932) (two offenses must be distinct under Blockburger)
- Smith v. State, 41 So.3d 1041 (Fla. 1st DCA 2010) (same act can support multiple sexual battery convictions)
- Meshell, 2 So.3d 132 (Fla. 2009) (two offenses from single touching episode)
- State v. Paul, 934 So.2d 1167 (Fla.2006) (de novo review of double jeopardy issue)