Jorge L. Pena-Vazquez, Appellant,
The State of Florida, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Stephen
T. Millan, Judge Lower Tribunal No. 15-17935.
J. Martinez, Public Defender, and Natasha Baker-Bradley and
James Odell, Assistant Public Defenders, for appellant.
Moody, Attorney General, and Natalia Costea, Assistant
Attorney General, for appellee.
EMAS, C.J., and LOGUE and SCALES, JJ.
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. He was sentenced to three consecutive
terms of ten years' imprisonment, followed by community
control and probation.
raises four issues on appeal. We affirm, and write to address
one of the issues raised.
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
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
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.
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 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").
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.
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).
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).
this is the essence of Pena-Vazquez's claim can best be
illustrated by the following example. Assume that Counts Two