According to Florida Statute 794.011, sexual battery occurs when an individual uses a sexual organ or other object to orally, anally, or vaginally penetrate a complainant who either did not consent to the act or was unable to consent. However, lewd or lascivious offenses, defined in Florida Statute 800.04, involve sexual contact with minors under the age of 16. They involve battery, molestation, touching, and/or exhibition.  Penetration is not required. Often times, activity that constitutes lewd or lascivious conduct also qualifies as sexual battery. Overzealous Destin Assistant State Attorneys commonly charge both lewd or lascivious conduct and sexual battery when a minor is involved in order to (1) ensure the highest probability of a conviction and (2) maximize the possible penalty.

The Double Jeopardy Clause

However, the Fifth Amendment of the U.S. Constitution prohibits double prosecution under the Double Jeopardy Clause. According to the Fifth Amendment, no “personal shall be subject for the same offence to be twice put in jeopardy of life or limb.” This clause covers four types of forbidden actions:

1. Prosecuting someone for the same crime after an acquittal
2. Prosecution someone for the same crime after a conviction
3. Prosecution someone for the same crime after certain types of mistrials
4. Punishing someone multiple times for the same crime in the same case

Sexual Battery and Lewd or Lascivious Charges

The Double Jeopardy Clause affects lewd or lascivious conduct cases when the prosecutor charges both lewd or lascivious conduct and sexual battery in the same indictment, receives a conviction for both counts, and requests a sentence for each count. While both counts can be charged, the Florida Supreme Court only permits one conviction because both of the counts are supported by the same facts and evidence.

So how can you tell if the facts and evidence are different?

First, did the same event or activity form the basis for both charges? Second, is the complainant same for both charges? Third, did the basis for both charges occur at the same time, in the same place? Fourth, was there a lapse in time between the basis for both charges? Fifth, is there evidence to show that the charges are separate and distinct events?

If the court finds that the charges are indivisible, an individual cannot be convicted of both. That means that the individual can only be punished for one of the charges.

Multiple Lewd or Lascivious Charges

In addition, Double Jeopardy concerns can arise when an individual is charged with multiple counts of lewd or lascivious conduct arising from the same incident. In the Romage case, the defendant pushed the complainant on the bed, lifted her shirt, touched her chest, digitally penetrated her, and then attempted penile penetration. The entire event lasted less than three minutes. The prosecutor charged the defendant with three counts of lewd or lascivious conduct for the touching, penetration, and attempted penetration. A Florida appellate court held this was improper because all three counts arose from the same event. Thus only one count of lewd or lascivious conduct was proper.

However, confusingly, in a separate case, the defendant in Meshell placed his mouth on the genitals of the complainant and engaged in oral and penile penetration. A Florida appellate court held three separate counts were proper in that case because oral, anal, and vaginal penetration require different facts and evidence to prove. They could therefore all be charged separately.

Fight Accusations of Lewd or Lascivious Conduct with Destin’s Premier Criminal Defense Law Firm

If you have been falsely accused of child molestation, you need Stephen G. Cobb, a board-certified Destin criminal defense attorney, to assist you in preparing your defense. For a free consultation, contact our Okaloosa County criminal defense law firm at today.

Cobb Criminal Defense Law Firm1992 Lewis Turner Blvd, Suite 101-BFort Walton Beach, FL 32547

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