Cupas v. State

District Court of Appeal of Florida

Cupas v. State

109 So. 3d 1174, 2013 WL 1136314, 2013 Fla. App. LEXIS 4440

CourtDistrict Court of Appeal of Florida

DecidedMarch 20, 2013

DocketNo. 4D12-702

StatusPublished

Cited by2 cases

This text of 109 So. 3d 1174 (Cupas v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cupas v. State, 109 So. 3d 1174, 2013 WL 1136314, 2013 Fla. App. LEXIS 4440 (Fla. Ct. App. 2013).

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Opinion

PER CURIAM.

Alain Cupas appeals the denial of a rule 3.800(a) motion, which we have treated as a rule 3.850 motion.¹ Following a trial, Cupas was convicted of three counts of lewd or lascivious molestation in violation of section 800.04(5)(a), Florida Statutes (2007). Count I alleged he touched the victim’s breast or the clothing covering it; count II alleged he touched her genital area or the clothing covering it; and count III alleged that he forced or enticed the victim to touch his genitals or the clothing covering them. All of these touchings occurred in close temporal proximity in the [1175]*1175same place. For counts I and II, he received consecutive 15-year prison terms followed by 15 years on probation for count III. Cupas alleges the three convictions violate the prohibition against double jeopardy.

We agree that based on our recent decision in Webb v. State, 104 So.3d 1153 (Fla. 4th DCA 2012), Cupas could not be convicted and sentenced twice for lewd and lascivious touching of the victim. However, consistent with the decision in State v. Meshell, 2 So.3d 132 (Fla.2009), count III, which involved appellant forcing the victim to touch his penis, is a distinct act requiring a different element of proof. See Fla. Std. Jury Instr. (Crim.) 11.10(c). We agree with Sanders v. State, 101 So.3d 373 (Fla. 1st DCA 2012), that a person can violate the lewd or lascivious molestation “statute in two separate and distinct ways: 1) by touching the victim in the proscribed manner, or 2) by forcing or enticing the victim to touch the person in the proscribed manner.” 101 So.3d at 375. Although we certified conflict with Sanders in Webb, Webb did not involve the two distinct statutory acts, in contrast to the two acts in Sanders as well as the two acts in this case.

Accordingly, the circuit court’s order is reversed. On remand, the trial court is directed to vacate the conviction for count II and resentence Cupas.

WARNER, GROSS and GERBER, JJ., concur.

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PER CURIAM.

Alain Cupas appeals the denial of a rule 3.800(a) motion, which we have treated as a rule 3.850 motion.¹ Following a trial, Cupas was convicted of three counts of lewd or lascivious molestation in violation of section 800.04(5)(a), Florida Statutes (2007). Count I alleged he touched the victim’s breast or the clothing covering it; count II alleged he touched her genital area or the clothing covering it; and count III alleged that he forced or enticed the victim to touch his genitals or the clothing covering them. All of these touchings occurred in close temporal proximity in the [1175]*1175same place. For counts I and II, he received consecutive 15-year prison terms followed by 15 years on probation for count III. Cupas alleges the three convictions violate the prohibition against double jeopardy.

We agree that based on our recent decision in Webb v. State, 104 So.3d 1153 (Fla. 4th DCA 2012), Cupas could not be convicted and sentenced twice for lewd and lascivious touching of the victim. However, consistent with the decision in State v. Meshell, 2 So.3d 132 (Fla.2009), count III, which involved appellant forcing the victim to touch his penis, is a distinct act requiring a different element of proof. See Fla. Std. Jury Instr. (Crim.) 11.10(c). We agree with Sanders v. State, 101 So.3d 373 (Fla. 1st DCA 2012), that a person can violate the lewd or lascivious molestation “statute in two separate and distinct ways: 1) by touching the victim in the proscribed manner, or 2) by forcing or enticing the victim to touch the person in the proscribed manner.” 101 So.3d at 375. Although we certified conflict with Sanders in Webb, Webb did not involve the two distinct statutory acts, in contrast to the two acts in Sanders as well as the two acts in this case.

Accordingly, the circuit court’s order is reversed. On remand, the trial court is directed to vacate the conviction for count II and resentence Cupas.

WARNER, GROSS and GERBER, JJ., concur.

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109 So. 3d 1174, 2013 WL 1136314, 2013 Fla. App. LEXIS 4440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cupas-v-state-fladistctapp-2013.

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