Summary
In Garcia v. State, 769 So.2d 449 (Fla. 4th DCA 2000), the defendant challenged his convictions for sexual battery and simple battery as a lesser included offense of burglary with a battery on the basis that the dual convictions violated double jeopardy.
Summary of this case from Herrera v. StateOpinion
Case Nos. 4D99-2065 and 4D99-2067
Opinion filed October 4, 2000 July Term 2000
Consolidated appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ronald J. Rothschild, Judge; L.T. Case No. 98-20558 CF10A.
Richard L. Jorandby, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
In challenging his convictions and sentences for sexual battery and simple battery as a lesser included offense of burglary with a battery, appellant raises two trial issues and challenges his dual convictions and sentences as a violation of double jeopardy. While we find no reversible error in the trial, we conclude that because there was one continuous offense in this case, and the battery was not separate from the sexual battery, double jeopardy prohibits the multiple convictions and punishments. See Pryor v. State, 755 So.2d 155 (Fla. 4th DCA 2000). In the instant case, while the state argues that the appellant pushed the victim to the bed, which could be classified as a battery, that act was an integral part of the sexual battery, since it prevented the victim from escaping and facilitated the subsequent act. Cf. Saavedra v. State, 576 So.2d 953 (Fla. 1st DCA 1991) ; Pulido v. State, 566 So.2d 1388, 1389 (Fla. 3d DCA 1990).
We therefore affirm the conviction and sentence for sexual battery and vacate the conviction and sentence for battery.
GROSS and HAZOURI, JJ., concur.