Opinion
No. 91-02998.
June 25, 1993.
James Marion Moorman, Public Defender, Bartow, and Joel E. Grigsby, Sp. Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Sue R. Henderson, Asst. Atty. Gen., Tampa, for appellee.
Jewell Roberts appeals the final judgment that adjudicated him guilty of four counts of kidnapping, four counts of robbery with a deadly weapon, fourteen counts of lewd and lascivious act on or in the presence of a child, and three counts of sexual battery with a deadly weapon. He raised three issues relative to his convictions, but only one has merit.
The state's evidence established that Roberts approached four girls under the age of sixteen at a ballfield area in a city park. He held a knife to one of the girls and ordered all of the girls into a nearby ballfield dugout. Roberts first rubbed each girl's breasts. Next he instructed the girls to remove their pants and panties, after which Roberts rubbed and in some cases inserted his finger into the girls' vaginas. Roberts then exposed his penis, masturbated, and ejaculated while standing behind the girls. He also forced some of the girls to touch his penis. Finally, Roberts instructed the girls to "play with themselves like they did at night in bed," which caused the girls to touch their vaginas. Roberts then took the girls' panties and left. When arrested, some of the girls' panties were in Roberts's possession.
In counts 12, 16, 19, and 24, the state charged Roberts with four counts of a lewd and lascivious act in the presence of a child under sixteen years of age pursuant to section 800.04(4), Florida Statutes (Supp. 1990). These four counts encompass one act, i.e., "exposing and/or touching and/or masturbating his penis." Roberts argues and we agree that he can be charged for only the number of acts, not the number of victims. The Florida Supreme Court, in State v. Hernandez, 596 So.2d 671 (Fla. 1992), held that the "number of distinct lewd acts should be determinative" of the number of allowable convictions. Hernandez, 596 So.2d at 672. The supreme court specifically disapproved of this court's opinion in Bergen v. State, 552 So.2d 262 (Fla. 2d DCA 1989) which held that the state correctly charged the defendant with five counts of masturbation in the presence of five children.
Accordingly, we reverse the convictions in counts 12, 16, 19, and 24 and remand to the trial court to resentence Roberts to only one of these counts. Otherwise, the judgment and sentences are affirmed.
CAMPBELL, A.C.J., and SCHOONOVER, J., concur.