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Pena-Vazquez v. State

Florida Court of Appeals, Third District

July 31, 2019

Jorge L. Pena-Vazquez, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Stephen T. Millan, Judge Lower Tribunal No. 15-17935.

          Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley and James Odell, Assistant Public Defenders, for appellant.

          Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

          Before EMAS, C.J., and LOGUE and SCALES, JJ.

          EMAS, C.J.

         Following a jury trial, Jorge L. Pena-Vazquez was convicted of two counts of lewd or lascivious molestation of his stepdaughter (a child over twelve but less than sixteen years of age) and one count of attempt to engage in a sexual act with his stepdaughter.[1] He was sentenced to three consecutive terms of ten years' imprisonment, followed by community control and probation.

         Pena-Vazquez raises four issues on appeal. We affirm, and write to address one of the issues raised.[2]

         Pena-Vazquez contends that his convictions and sentences for the two counts of lewd or lascivious molestation violate double jeopardy. These two counts (Counts Two and Six of the Amended Information), are identically worded and allege in pertinent part:

And the aforesaid Assistant State Attorney, under oath, further information makes JORGE LUIS PENA-VAZQUEZ, on or between August 18, 2009 and August 18, 2011, in the County and State aforesaid, being a person of the age of (18) years or older, did unlawfully and intentionally touch the breasts, genitals, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks, of C.P., a minor, a person 12 years of age or older, but less than 16 years of age, in violation of s. 800.04(5)(c)2, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

         Pena-Vazquez contends that, because these two counts are identical in language, and allege a two-year timeframe for the commission of the crimes, it is impossible to rule out the possibility that the jury relied upon one act of lewd or lascivious molestation as a basis to return two convictions for violating the very same criminal statute.

         We find Pena-Vazquez's contention without merit. We first note this claim does not involve the question of whether Pena-Vazquez is exposed to successive prosecutions for a single crime for which he has already been placed in jeopardy. Nor does it involve a claim that the jury convicted him of violating two different statutes (one of which is wholly subsumed within the other) through the commission of a single criminal act; under such circumstances, we would likely be required to employ a Blockburger[3] analysis. See Vizcon v. State, 771 So.2d 3, 5 (Fla. 3d DCA 2000) (observing, under circumstances similar to the instant case, that "the issue before us does not concern the double jeopardy preclusion of successive prosecutions, as to which the contents of the respective charging documents are determinative, but whether the defendant has been unconstitutionally punished in the same prosecution more than once for only one criminal act").[4]

         Instead, and more precisely, the question presented is whether the Amended Information was fundamentally defective where it alleged two counts of violating the same statute, using identical language and relying upon a two-year range of dates for the commission of both offenses. We answer that question in the negative.

         It is true that the State used identical language in charging Counts Two and Six. And although this may not represent a best practice, this alone does not render the counts defective or the convictions improper. See, e.g., Brugal v. State, 217 So.3d 134 (Fla. 3d DCA 2017); Vizcon, 771 So.2d at 6; Nicholson v. State, 757 So.2d 1227 (Fla. 4th DCA 2000); Collins v. State, 489 So.2d 188 (Fla. 5th DCA 1986). Nor does the fact that the two counts merely tracked the statutory language render the Amended Information defective. See, e.g., Price v. State, 995 So.2d 401 (Fla. 2008); Cantrell v. State, 403 So.2d 977 (Fla. 1981); Martinez v. State, 368 So.2d 338 (Fla. 1978); Cason v. State, 508 So.2d 448 (Fla. 3d DCA 1987); State v. Mena, 471 So.2d 1297 (Fla. 3d DCA 1985).

         Reduced to its essence, this aspect of Pena-Vazquez's claim is the bare assertion that the Amended Information is defective because it failed to allege a specific date for the criminal act alleged in each count, and instead alleged a range of dates (from August 18, 2009 to August 18, 2011).

         That this is the essence of Pena-Vazquez's claim can best be illustrated by the following example. Assume that Counts Two and ...


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