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Curry v. State

Florida Court of Appeals, Fourth District

September 6, 2017

DAVID TIMOTHY CURRY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562009CF004209A.

          Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.

          Taylor, J.

         David Curry appeals his convictions and sentences for three sex offenses: Count I - sexual battery on a child by a person in familial or custodial authority; Count II - lewd or lascivious molestation of a child between 12 and 16 years of age, and Count III - lewd or lascivious molestation of a child less than 12 years of age. We affirm appellant's convictions and sentences for Counts I and III, but reverse as to Count II, because the trial court erred in denying appellant's motion to dismiss Count II where the statute of limitations had expired for that offense.

         The charged offenses stemmed from a 2004 episode in which T.M. and S.M., the daughters of appellant's former girlfriend, spent the day cleaning appellant's apartment and then spent the night there.

         The state charged appellant with three counts relevant to this appeal, which are paraphrased as follows:

COUNT I: Sexual battery by penile/vaginal penetration of T.M., a child 12 years of age or older but less than 18, while appellant was in a position of familial or custodial authority, between June 23 and December 31, 2004, in violation of Florida Statute 794.011(8)(b).
COUNT II: Lewd or lascivious molestation of T.M., a child less than 16 years of age, by forcing or enticing her to touch appellant's genitals in a lewd or lascivious manner, between June 23 and December 31, 2004, in violation of Florida Statute 800.04(5)(c)(2).
COUNT III: Lewd or lascivious molestation of S.M., a person less than 12 years of age, by touching her breasts or genital area or the clothing covering them between June 23 and December 31, 2004, in violation of Florida Statute 800.04(5)(b).

         The case proceeded to trial on those counts, and the evidence established the following facts.

         T.M. was born in January 1992, and S.M. was born in June 1994. A few years before the charged crimes occurred, T.M. and S.M. were abandoned by their mother and were sent to live with their grandparents. Appellant, a former boyfriend of their mother, continued to see them.

         In 2004, T.M., S.M., and their brother went to appellant's apartment one day to clean it. At the time, T.M. was 12 ...


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