Hunsicker v. StateHunsicker v. State
Bruce Hunsicker was found guilty of three counts of sexual battery, two counts of lewd or lascivious molestation, one count of lewd or lascivious exhibition, one count of lewd or lascivious conduct, and one count of burglary of a dwelling with an assault or battery. He appeals his judgment and sentences raising several issues. Although we conclude that we must affirm as to each issue, we write to discuss two: 1) whether the convictions for four counts of lewd or lascivious acts violate double jeopardy principles; and 2) whether the sentences imposed on these four counts as
A detailed discussion of the facts is not necessary to resolve the two issues we address. However, a discussion of the sentences Hunsicker received after the jury found him guilty is a necessary prelude to our legal analysis, and so we will begin there and then proceed to discuss each issue in the order presented.
The Sentences
For three acts of sexual battery, burglary of a dwelling and four lewd or lascivious acts committed on his ten-year-old victim during the late evening hours of February 2, 2001, Hunsicker, who the trial court found qualified as a HO and PRR, was sentenced as follows:
The sentences imposed for the sexual battery charges alleged in counts one, two and three in violation of
section 794.011(2), Florida Statutes (2001) , were life imprisonment concurrently for each count.
The sentence imposed for the burglary charge alleged in count four in violation of
section 810.02(2)(a), Florida Statutes (2001) , was life imprisonment consecutive to counts one, two and three with HO and PRR classification.
The sentence imposed for lewd or lascivious molestation alleged in count five in violation of
section 800.04(5), Florida Statutes (2001) , was life imprisonment consecutive to count four with HO and PRR classification.
The sentence imposed for lewd or lascivious molestation alleged in count six in violation of
section 800.04(5), Florida Statutes (2001) , was life imprisonment consecutive to count five with HO and PRR classification.
The sentence imposed for lewd or lascivious exhibition alleged in count seven in violation of
section 800.04(7), Florida Statutes (2001) , was thirty years imprisonment consecutive to count six with HO and PRR classification.
The sentence imposed for lewd or lascivious conduct alleged in count eight in violation of
section 800.04(6), Florida Statutes (2001) , was thirty years imprisonment consecutive to count seven with HO and PRR classification.
As to the counts of lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition, Hunsicker contends that his convictions violate double jeopardy principles because each arose out of a single criminal episode. Therefore, he argues that he may be convicted of only one lewd or lascivious offense. Hunsicker also contends that because he was sentenced
At no time during the sentencing hearing did Hunsicker object that his sentences violated double jeopardy principles or that his dual sentence as a HO and PRR were improper. Moreoever, Hunsicker did not avail himself of the procedure in
Double Jeopardy
We reject the State‘s preservation of error argument. This court and others have consistently held that violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal.2 See State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004); Tannihill v. State, 848 So.2d 442 (Fla. 4th DCA 2003); Haynes v. State, 828 So.2d 457, 458 (Fla. 4th DCA 2002); Rios v. State, 791 So.2d 1208 (Fla. 5th DCA 2001); Ford v. State, 749 So.2d 570, 571 (Fla. 5th DCA 2000); Rivera v. State, 745 So.2d 343 (Fla. 4th DCA 1999); Grene v. State, 702 So.2d 510 (Fla. 3d DCA 1996); Austin v. State, 699 So.2d 314 (Fla. 1st DCA 1997); Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996); see also Johnson v. State, 747 So.2d 1027 (Fla. 2d DCA 1999) (holding that under the facts of the case, the two convictions violated the prohibition against double jeopardy and constituted fundamental error that may be raised for the first time on appeal). Accordingly, it is appropriate for us to resolve the double jeopardy issue on the merits despite the fact that Hunsicker neither objected during sentencing nor raised the issues via a
Three basic protections emanate from the Double Jeopardy Clauses of the Federal and Florida Constitutions: 1) protection against a subsequent prosecution for the same offense after acquittal; 2) protection against a subsequent prosecution for the same offense after conviction; and 3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted); State v. Wilson, 680 So.2d 411, 413 (Fla.1996).3 It is the third protection that is implicated here and it may prohibit convictions on multiple counts brought in a single prosecution when the convictions arise from conduct committed in a single criminal episode. Cabanela v. State, 871 So.2d 279, 281 (Fla. 3d DCA 2004) (“Cabanela therefore argues that his multiple convictions and sentences for lewd assault upon a child pursuant to
The Morman court cited State v. Hightower, 509 So.2d 1078 (Fla.1987), for the proposition that “[a]s now worded,
section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious.” Morman, 811 So.2d at 717 (quoting Hightower, 509 So.2d at 1079). The Morman court then concluded that “the statute‘s focus is on conduct involving sexual activity and not upon the individual acts that comprise lewd and lascivious activity in the same spatial and temporal zone.” Id.Gisi, 848 So.2d at 1281. Hence, under this version of the statute, because the focus was not on the individual acts that comprised the crime of lewd and lascivious assault, there was no legislative intent to impose separate punishments for each act that was committed in one criminal episode. Therefore, the courts employed the analysis that a separate crime was committed in a separate criminal episode provided there was a temporal break between each act that allowed the defendant to form a new criminal intent.
amending s. 800.04, F.S.; creating the offenses of “lewd or lascivious battery,” “lewd or lascivious molestation,” “lewd or lascivious conduct,” and “lewd or lascivious exhibition“; providing definitions; providing penalties; precluding consent from being raised as a defense if the victim is under a specified age; precluding ignorance or belief of age from being raised as a defense; providing an exception for maternal breastfeeding; deleting provisions that define and provide penalties for “lewd, lascivious, or indecent assault or act upon or in the presence of a child“;....
Ch. 99-201, Laws of Fla. (emphasis added). The language and structure of the amended statute does focus on individual acts and creates separate criminal offenses in each subsection that designates a specific degree of the crime and the punishment to be imposed for each. We conclude that the legislative intent is clear that separate punishments be imposed for each criminal offense created by the statute. Therefore, with respect to Hunsicker‘s convictions for the separate crimes of lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition, there is no double jeopardy violation.
However, Hunsicker was charged with two counts of lewd or lascivious molestation under
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.
Accordingly, we conclude that Hunsicker‘s convictions do not violate the Double Jeopardy Clauses of the Florida and federal constitutions. Next we will explain why we may not resolve the issues Hunsicker raises regarding his dual sentences as a habitual offender and prison releasee reoffender.
Dual Sentences As A Habitual Offender And Prison Releasee Reoffender
Hunsicker argues that his sentences are illegal because he was sentenced as a habitual offender and prisoner releasee reoffender for each count. It is permissible to sentence one defendant as both a HO and as a PRR on separate counts. Williams v. State, 870 So.2d 166 (Fla. 2d DCA 2004); Tolbert v. State, 827 So.2d 278 (Fla. 2d DCA 2002); Bright v. State, 760 So.2d 287 (Fla. 5th DCA 2000). It is also permissible to sentence a defendant as a HO and a PRR on the same count as long as the sentences are concurrent and the HO sentence exceeds the PRR sentence. Grant v. State, 770 So.2d 655 (Fla.2000); State v. Manning, 839 So.2d 849, 851 (Fla. 5th DCA 2003) (holding that a defendant can receive a PRR sentence and a HO sentence for a single offense, so long as the HO sentence results in a greater sentence); Kimbrough v. State, 776 So.2d 1055 (Fla. 5th DCA 2001); see also Williams v. State, 804 So.2d 572 (Fla. 5th DCA), cause dismissed, 829 So.2d 921 (Fla.2002). It is not permissible, however, to sentence a defendant to consecutive sentences when the sentences have already been enhanced under HO or PRR provisions and the crimes arose from one criminal episode. Hale v. State, 630 So.2d 521 (Fla.1993); Robinson v. State, 829 So.2d 984 (Fla. 1st DCA 2002); Smith v. State, 824 So.2d 263 (Fla. 2d DCA 2002); Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000).
Here, Hunsicker contends that the sentences for Counts IV, V and VI were not increased by the HO classification and therefore, the trial court erred in sentencing Hunsicker as both a HO and PRR for those counts. He also contends that the trial court erred in sentencing him to consecutive sentences for the counts that were enhanced pursuant to his classification as a HO and PRR. While his claims appear to have merit, unfortunately for Hunsicker, as the State contends, he did not object during sentencing and did not avail himself of the procedure provided by
A “sentencing error” has been broadly defined to include “harmful errors entered as a result of the sentencing process.” Brannon v. State, 850 So.2d 452, 458 (Fla.2003) (quoting Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800 & Fla. Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015, 1019 (Fla.1999)). The error Hunsicker alleges in the instant case is certainly a sentencing error. In Brannon, the court made it explicitly clear that “for defendants whose initial briefs were filed after the effective date of
Conclusion
Hunsicker‘s convictions for lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition do not violate double jeopardy principles. Because double jeopardy violations are considered fundamental error that may be raised for the first time on appeal, we reject the State‘s preservation of error argument. However, the State‘s preservation of error argument does have merit regarding the issue raised by Hunsicker concerning his dual sentences as a HO and PRR. Therefore, we are unable to decide that issue on the merits, and Hunsicker will have to raise it in an appropriate motion for postconviction relief. Accordingly, we affirm Hunsicker‘s convictions and sentences.
AFFIRMED.
PLEUS, J., concurs.
GRIFFIN, J., concurs in result only.
Notes
Hunsicker also asserts that the trial court erred in adjudicating him guilty of armed burglary. According to the judgment in the instant case, Hunsicker was adjudicated guilty of violating
A person who:
(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;
(2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act;
(3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or
(4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree....