Fleming v. State
227 So. 3d 1254
| Fla. Dist. Ct. App. | 2017Background
- Fleming, convicted after jury trial of sexual battery with a deadly weapon, lewd or lascivious battery, lewd or lascivious molestation, kidnapping, and fleeing/eluding. Appeal concerns double jeopardy between two sexual-offense convictions.
- Victim: a 14-year-old girl whom Fleming picked up against her will, drove to an orange grove, and forcibly raped; he later dropped her at school.
- The information charged the same specific sexual act as the basis for both sexual battery and lewd or lascivious battery counts; the victim testified to a single encounter.
- Court reviewed whether the convictions arose from the same criminal episode and whether they were predicated on distinct acts; review is de novo on undisputed facts.
- Statutory definitions: sexual battery (penetration) and lewd or lascivious battery ("sexual activity" with a person 12–15) use identical definitions of the sexual act; only age is an element unique to the lewd/battery statute.
- Trial court sentenced on both counts; appellate court vacated the lewd or lascivious battery conviction and sentence as violative of double jeopardy, affirmed remaining convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sexual battery and lewd or lascivious battery convictions violate double jeopardy when based on the same sexual act and victim | Fleming: convictions arise from same episode and same act, so multiple convictions violate double jeopardy | State: distinct statutory elements (age for lewd battery) justify separate convictions | Court: convictions arose from same episode and not distinct acts; statutes overlap such that lewd/battery is subsumed by sexual battery here; vacated lewd/battery conviction |
Key Cases Cited
- Binns v. State, 979 So. 2d 439 (Fla. 4th DCA 2008) (standard of review for double jeopardy on undisputed facts is de novo)
- Partch v. State, 43 So. 3d 758 (Fla. 1st DCA 2010) (framework: same episode then distinct acts inquiry)
- Batchelor v. State, 193 So. 3d 1054 (Fla. 2d DCA 2016) (apply elements test after episode/distinct-acts analysis)
- Murray v. State, 890 So. 2d 451 (Fla. 2d DCA 2004) (factors for single episode: single victim, location, temporal break)
- Staley v. State, 829 So. 2d 400 (Fla. 2d DCA 2002) (same-episode analysis guidance)
- Drawdy v. State, 136 So. 3d 1209 (Fla. 2014) (convictions must be based on distinct acts of separate character to avoid double jeopardy)
- Graham v. State, 207 So. 3d 135 (Fla. 2016) (references Blockburger analysis in sexual-offense double jeopardy context)
- Williams v. State, 957 So. 2d 595 (Fla. 2007) (lewd or lascivious battery can be a permissive lesser-included offense of sexual battery when victim is 12–15)
- Pizzo v. State, 945 So. 2d 1203 (Fla. 2006) (vacatur of lesser offense when double jeopardy bars multiple convictions)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (elemental test for same-offense double jeopardy)
- Graves v. State, 95 So. 3d 1033 (Fla. 5th DCA 2012) (to avoid double jeopardy each offense must contain an element the other does not)