          Supreme Court of Florida
                                     ____________

                                    No. SC12-2021
                                    ____________

                               STATE OF FLORIDA,
                                   Petitioner,

                                           vs.

                                 ERIC J. DRAWDY,
                                    Respondent.

                                    [April 10, 2014]

QUINCE, J.

      This case is before the Court for review of the decision of the Second

District Court of Appeal in Drawdy v. State, 98 So. 3d 165 (Fla. 2d DCA 2012).

The district court certified that its decision is in direct conflict with the decision of

the First District Court of Appeal in Roberts v. State, 39 So. 3d 372 (Fla. 1st DCA

2010), and the decisions of the Fifth District Court of Appeal in Murphy v. State,

49 So. 3d 295 (Fla. 5th DCA 2010, and Roughton v. State, 92 So. 3d 284 (Fla. 5th

DCA 2012). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the

reasons that follow, we quash the Second District’s decision and approve the
decisions of the First and Fifth Districts in Roberts and Murphy. 1

                                I. BACKGROUND

      Eric Drawdy “raped his young teenage stepdaughter.” Drawdy, 98 So. 3d at

166. “While doing so, he touched her breasts.” Id. He was charged with one

count of sexual battery under section 794.011(8)(b), Florida Statutes (2006), 2 for

allegedly penetrating the victim’s vagina with his penis, and one count of lewd or

lascivious molestation under section 800.04(5)(a), Florida Statutes (2006), 3 for the


      1. The Fifth District’s decision in Roughton is currently pending review
before this Court, so we do not consider it here.
      2. That section reads:

            (8) Without regard to the willingness or consent of the victim,
      which is not a defense to prosecution under this subsection, a person
      who is in a position of familial or custodial authority to a person less
      than 18 years of age and who:
            ....
            (b) Engages in any act with that person while the person is 12
      years of age or older but less than 18 years of age which constitutes
      sexual battery under paragraph (1)(h) commits a felony of the first
      degree, punishable as provided in s. 775.082, s. 775.083, or s.
      775.084.

§ 794.011(8)(b), Fla. Stat. (2006). Section 794.011(1)(h) defines “sexual battery”
as “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; however, sexual
battery does not include an act done for a bona fide medical purpose.”

      3. Section 800.04(5)(a) provides:

            (a) 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, or forces or

                                        -2-
alleged intentional touching, in a lewd or lascivious manner, of the victim’s

breasts, genitals, genital area, buttocks, or the clothing covering them. At trial, the

victim testified as follows:

      PROSECUTOR: His penis penetrated and go [sic] into your vagina?

      VICTIM: Yes, sir.

      ....

      PROSECUTOR: While he was doing that, did he touch any other
      parts of your body?

      VICTIM: Yes, sir.

      PROSECUTOR: What other parts of your body did he touch?

      VICTIM: My breasts.

      PROSECUTOR: And did he touch them over your shirt or under your
      shirt, or something else?

      VICTIM: Under my shirt.

      PROSECUTOR: Did he take your shirt off or kept [sic] it on?

      VICTIM: He kept it on.

      PROSECUTOR: Did you reach up under your shirt?

      VICTIM: Yes, sir.

      PROSECUTOR: Do you recall if he took off any of his clothes?



      entices a person under 16 years of age to so touch the perpetrator,
      commits lewd or lascivious molestation.


                                         -3-
      VICTIM: He pulled down his shorts, but he didn’t take them off.

A jury convicted Drawdy of both charges, and the trial court sentenced him “to

thirty years in prison for the sexual battery, followed by five years of probation for

the molestation.” Drawdy, 98 So. 3d at 166. Drawdy appealed. Id.

      On appeal, the Second District held that double jeopardy prohibits

convictions for both sexual battery and lewd or lascivious molestation in a single

criminal episode. Id. The district court agreed with the reasoning of the First

District in Beahr v. State, 992 So. 2d 844, 847 (Fla. 1st DCA 2008), that “while

sexual battery includes an element not included in lewd or lascivious molestation,

the converse is not true.” Drawdy, 98 So. 3d at 171. The Second District stated

that section 800.04(5) does not specify whether the lewd touching must be done

with the perpetrator’s hands, but the record in this case does not disclose the

manner of touching. Id. The court found that “[v]aginal penetration without

touching the victim’s breasts or buttocks with some part of the perpetrator’s body

would be acrobatic.” Id. Thus, the Second District concluded that double jeopardy

bars convictions for sexual battery and simultaneous lewd or lascivious

molestation as separate offenses. Id. The court reversed and remanded for the trial

court to vacate Drawdy’s conviction for lewd or lascivious molestation. Id. at 171-

72. However, the Second District also certified conflict with Roberts, the case




                                         -4-
abrogating Beahr, and two cases from the Fifth District, Murphy and Roughton. 4

Drawdy, 98 So. 3d at 172.

       In Roberts, the defendant was convicted of two counts of sexual battery and

two counts of lewd or lascivious molestation. 39 So. 3d at 373. The sexual battery

convictions were based on two acts: union with or penetration of the victim’s

vagina by the defendant’s penis and the defendant’s penis penetrating the victim’s

mouth. Id. During each of these episodes, the defendant also committed one act of

lewd or lascivious molestation: once by touching the victim’s vagina with his hand

and the other by touching the victim’s breasts and/or buttocks with his hands

and/or mouth. Id. 5 In determining whether double jeopardy principles had been

violated, the First District stated:

             Considering the supreme court’s conclusion in [State v.
       Meshell, 2 So. 3d 132 (Fla. 2009),] that double jeopardy principles do
       not necessarily preclude multiple convictions for the same sexual
       offense committed by different actions during the same criminal
       episode, it necessarily follows that double jeopardy principles would
       not necessarily preclude convictions for two different sexual offenses
       committed by different actions during the same criminal episode.

Id. at 374. The district court found that under Meshell, the two offenses of “oral

and vaginal penetration by appellant’s penis” were distinct criminal acts requiring



       4. See supra note 1.
     5. The opinion does not disclose which act of lewd touching occurred with
which act of sexual battery.


                                        -5-
different elements of proof from the offenses of “touching the victim’s genitals

with appellant’s hand and touching the victim’s breasts and/or buttocks with

appellant’s hand and/or mouth.” Id. Thus, the court held that the defendant’s

convictions for both sexual battery and lewd or lascivious molestation did not

violate the prohibition against double jeopardy. Id.

      In Murphy, the Fifth District also rejected the argument that convictions for

both offenses violated double jeopardy principles. 49 So. 3d at 298. In that case,

the defendant was found guilty of attempted sexual battery for causing his penis to

have union with the victim’s vagina and of lewd or lascivious molestation for

intentionally touching the victim’s genitals or the clothing covering them. Id. at

297-98. The defendant argued that his convictions violated double jeopardy

“because both convictions arose from a single, continuous episode without a

spatial or temporal break between each act to enable the defendant to form a new

criminal intent for each separate act.” Id. at 298. The district court reasoned:

             The differences in the character and type of crime proven are as
      important as the spatial and temporal aspects when considering
      whether multiple punishments are appropriate. An analysis of those
      differences, as noted by Judge Griffin in her concurring opinion in the
      defendant’s initial appeal, leads to the conclusion that the defendant’s
      convictions for attempted sexual battery and lewd [or] lascivious
      molestation did not violate his double jeopardy rights.

Id. (citing Meshell, 2 So. 3d at 135). The court reversed and remanded, however,

on other grounds. Id.


                                        -6-
                                  II. ANALYSIS

      The United States and Florida Constitutions both contain double jeopardy

clauses designed to prevent a person from receiving multiple punishments for the

same criminal offense. Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009) (citing

U.S. Const. amend. V; Art. I, § 9, Fla. Const). A determination of whether double

jeopardy is violated based on undisputed facts is a legal determination; thus, this

Court’s review is de novo. State v. Paul, 934 So. 2d 1167, 1171 (Fla. 2006),

receded from on other grounds by Valdes, 3 So. 3d at 1077. Where multiple

criminal offenses occur in the course of a single criminal episode or transaction,

courts employ the Blockburger 6 test, codified at section 775.021(4)(a), Florida

Statutes (2006), to determine whether receiving separate punishments for each

offense violates double jeopardy. Gordon v. State, 780 So. 2d 17, 19-20 (Fla.

2001), receded from on other grounds by Valdes, 3 So. 3d at 1077. However, even

if the offenses occur within the same criminal episode such that Blockburger

applies, double jeopardy is not implicated where each offense is a “distinct

criminal act[].” See Paul, 934 So. 2d at 1172 n.3 (“Of course, if two convictions

occurred based on two distinct criminal acts, double jeopardy is not a concern.”).

      For example, in Hayes v. State, 803 So. 2d 695 (Fla. 2001), the defendant

was convicted of both armed robbery and grand theft of a motor vehicle for

      6. Blockburger v. United States, 284 U.S. 299 (1932).


                                        -7-
stealing various items from inside the victim’s residence, including the victim’s car

keys, and then using those keys to steal the victim’s van that was parked outside.

Id. at 697. We recognized that “the prohibition against double jeopardy does not

prohibit multiple convictions and punishments where a defendant commits two or

more distinct criminal acts.” Id. at 700. Thus, the issue was “whether a criminal

transaction or episode gave rise to distinct and independent criminal acts resulting

in separate crimes so as not to run afoul of the constitutional prohibition against

double jeopardy.” Id. at 701. In holding that the defendant’s theft of the items

inside the residence was a distinct and independent criminal act from the motor

vehicle theft, we concluded that:

      [I]n reaching a determination of the double jeopardy issue in a case
      involving a single victim’s property, courts should look to whether
      there was a separation of time, place, or circumstances between the
      initial armed robbery and the subsequent grand theft, as those factors
      are objective criteria utilized to determine whether there are distinct
      and independent criminal acts or whether there is one continuous
      criminal act with a single criminal intent. In making this
      determination of whether there is a separation of time, place, or
      circumstances giving rise to distinct and independent acts, the courts
      should consider the location of the items taken, the lapse of time
      between takings, the number of owners of the items taken, and
      whether intervening events occurred between the takings.

Id. at 704.

      In Meshell, we upheld the defendant’s convictions of two counts of lewd or

lascivious battery under section 800.04(4) as distinct criminal acts not violating

double jeopardy. 2 So. 3d at 136. The defendant had been convicted of four

                                         -8-
counts of lewd or lascivious battery, but had only appealed as to two counts: that

the defendant “did with his penis penetrate or have union with the vagina of [the

victim]” (Count 1), and that the defendant “did with his penis have union with the

mouth of [the victim]” (Count 3). Id. at 134 (alteration in original). Both offenses

occurred at approximately the same time on the same date. Id. The defendant

“argued that double jeopardy prohibited his conviction and sentences for these two

acts because the record did not reflect a ‘temporal break’ sufficient for him to form

a new criminal intent.” Id.

      On appeal, we found that “sexual acts of a separate character and type

requiring different elements of proof, such as those proscribed in the sexual battery

statute, are distinct criminal acts that the Florida Legislature has decided warrant

multiple punishments.” Id. at 135. Additionally, because “the same sexual acts

proscribed in the sexual battery statute are also proscribed in the lewd [or]

lascivious battery statute, under which [the defendant] was charged,” we concluded

that “the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal

penetration) are of a separate character and type requiring different elements of

proof and are, therefore, distinct criminal acts.” Id. at 136.7 We found no double




      7. In that case, we limited our review to section 800.04(4), which was the
only section at issue before the Fifth District in the case below. Id. at 134.


                                         -9-
jeopardy violation “[b]ecause the oral sex described in Count 3 is a criminal act

distinctively different from the vaginal penetration or union in Count 1.” Id.

        The Second District correctly determined that the instant case involves a

single criminal episode because the acts essentially occurred simultaneously and

also involved only a single victim, a single location, and no temporal break.

Drawdy, 98 So. 3d at 167.8 Thus, the question is whether the convictions were

predicated on distinct criminal acts, such that “double jeopardy is not a concern.”

Paul, 934 So. 2d at 1172 n.3; Meshell, 2 So. 3d at 135; Hayes, 803 So. 2d at 700.

Drawdy was convicted of sexual battery for penetrating the victim’s vagina with

his penis. He was convicted of lewd or lascivious molestation for intentionally

touching the victim’s breasts in a lewd or lascivious manner during the vaginal

penetration. These offenses are distinct criminal acts of a separate character and

type.

        Although the record does not disclose the exact manner of touching, the

touching obviously occurred with some part of Drawdy’s body other than his

penis, and it occurred under the victim’s shirt, which precludes the possibility that

his chest rubbed against her breasts during intercourse. Thus, touching the

victim’s breasts was not incidental to the vaginal penetration—as grabbing the

victim’s buttocks to facilitate the sex act, for example, might be. Additionally,

        8. Neither party raises an issue with this finding by the Second District.


                                         - 10 -
proving that Drawdy touched the victim’s breasts during vaginal penetration will

require different elements of proof than proving he had vaginal intercourse with

the victim. The lewd touching here was not an integral or necessary part of the sex

act, but a separate and distinct act by itself. As such, Drawdy’s convictions

involve offenses “of a separate character and type,” which are “distinct criminal

acts” that “do not violate double jeopardy.” Meshell, 2 So. 3d at 136.

                               III. CONCLUSION

      Based on the foregoing, we quash the decision of the Second District in

Drawdy v. State, 98 So. 3d 165 (Fla. 2d DCA 2012), and remand to the district

court for an order affirming Drawdy’s convictions. We also approve the First

District’s decision in Roberts v. State, 39 So. 3d 372 (Fla. 1st DCA 2010), and the

Fifth District’s decision in Murphy v. State, 49 So. 3d 295 (Fla. 5th DCA 2010).

      It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY,
JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      Second District – Case No. 10-3347

      (Polk County)




                                       - 11 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Robert Jay Krauss,
Chief-Assistant Attorney General and Dawn A. Tiffin, Assistant Attorney General,
Tampa, Florida,

      for Petitioner

Howard L. Dimmig, II, Public Defender, and Stephen Michael Grogoza, Special
Assistant Public Defender, Bartow, Florida,

      for Respondent




                                     - 12 -
