Joseph Michel v. The State of Florida

• Court: District Court of Appeal of Florida
• Decided: January 24, 2024
• Docket: 2022-1114
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 24, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1114 Lower Tribunal No. F18-5919 ________________

Joseph Michel, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.

Rier Jordan, P.A., and Jonathan E. Jordan, for appellant.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.

Before EMAS, HENDON and LOBREE, JJ.

PER CURIAM. Affirmed. Compare § 800.04(4)(a)(1), Fla. Stat. (2018) (“A person

commits lewd or lascivious battery by. . . [e]ngaging in sexual activity with a

person 12 years of age or older but less than 16 years of age”) and §

800.04(1)(d), Fla. Stat. (2018) (defining “sexual activity” as “the oral, anal, or

vaginal penetration by, or union with, the sexual organ of another or the anal

or vaginal penetration of another by any other object”); with § 800.04(5)(a),

Fla. Stat. (2018) (“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. . . commits lewd or

lascivious molestation.”). See Graham v. State, 207 So. 3d 135, 141 (Fla.

2016) (upholding dual convictions for lewd or lascivious molestation for

touching the victim’s breast and the victim’s buttocks during the course of a

single episode, because each touching was an individual and distinct act that

was committed sequentially, noting: “In this case, a new act began each time

one touch ended and another was initiated, no matter how closely each one

followed the other.”); State v. Meshell, 2 So. 3d 132 (Fla. 2009) (finding no

double jeopardy violation where defendant was convicted of two counts of

lewd or lascivious battery for penetrating the victim’s mouth and victim’s

vagina during the same criminal episode, because each act was a distinct

criminal act). See also Braddy v. State, 111 So. 3d 810, 837 (Fla. 2012)

2 (holding that if a defendant’s contemporaneous objection to an improper

comment or testimony is sustained, defense counsel must thereafter move

for a mistrial to preserve the issue for appellate review and, in the absence

of such preservation, can be reviewed only for fundamental error); Rose v.

State, 787 So. 2d 786, 797 (Fla. 2001) (finding claim of improper comment

by prosecutor during closing argument to be unpreserved where defense

attorney did not move for a mistrial after the trial court sustained his objection

to the comment); Brown v. State, 124 So. 2d 481, 484 (Fla. 1960) (holding

that “in order to be of such fundamental nature as to justify a reversal in the

absence of timely objection the error must reach down into the validity of the

trial itself to the extent that a verdict of guilty could not have been obtained

without the assistance of the alleged error.”) (citing Hamilton v. State, 88 So.

2d 606 (Fla. 1956) (“We do not consider an error to be of such fundamental

nature as to justify a reversal in the absence of timely objection unless it

reaches down into the legality of the trial itself to the extent that a verdict of

guilty could not have been obtained without the assistance of the error

alleged.”))