Robert O. Simmons, Appellant,
State of Florida, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Martin A.
O. Simmons, pro se, Appellant.
Moody, Attorney General, and Sharon Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
Simmons challenges the denial of his motion to correct
illegal sentence filed under Florida Rule of Criminal
Procedure 3.800(a). We affirm.
1996, Simmons was convicted of two counts of sexual battery
by threat of force or violence likely to cause serious
personal injury, one count of kidnapping, and one count of
burglary of a structure with a person assaulted. His
sentences included life in prison. This court upheld his
convictions and sentences on direct appeal and mandate issued
over two decades ago. Simmons v. State, 754 So.2d 31
(Fla. 1st DCA 1998).
ground one of his postconviction motion, Simmons alleged that
his life sentence for burglary with a person assaulted is
illegal as it constitutes an improper "double
enhancement." He argued that he could not be convicted
of both burglary with a battery and sexual battery because
the sexual battery was the same conduct used to enhance the
burglary charge. Although Simmons tries to frame his claim as
an attack on his sentences, he is really challenging his
convictions because "correcting the alleged double
jeopardy violation would require vacating an underlying
conviction." Coughlin v. State, 932 So.2d 1224,
1226 (Fla. 2d DCA 2006); see also Ferenc v. State,
563 So.2d 707, 707 (Fla. 1st DCA 1990) (holding that a
"double jeopardy argument constitutes a challenge of a
conviction, rather than a sentence"). Because rule
3.800(a) is limited to correction of illegal sentences,
Simmons's double jeopardy claim is procedurally barred.
his double jeopardy claim fails on the merits. See State
v. Foreman, 476 So.2d 662, 663 (Fla. 1985); Wicker
v. State, 462 So.2d 461, 463 (Fla. 1985).
ground two, Simmons alleged that he could not be sentenced
for two counts of sexual battery because both counts arose
from a single transaction or episode. He appears to argue
that the imposition of a sentence for both counts violates
the prohibition against double jeopardy. As in ground one,
this claim was properly denied as he is inherently
challenging his convictions, not the sentences imposed.
two also fails on the merits. The information alleged that
Simmons committed one sexual battery by touching the
victim's vagina with his sexual organ, and the other by
penetrating the victim's vagina with his finger. Those
acts are separately punishable as a matter of law, even if
they occurred during the same criminal episode. See
Roberts v. State, 39 So.3d 372 (Fla. 1st DCA 2010),
approved by State v. Drawdy, 136 So.3d 1209 (Fla.
2014); State v. Meshell, 2 So.3d 132, 135 (Fla.
2009) (explaining 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").
ground three, Simmons alleges that his sexual predator
designation is illegal because the trial court failed to make
the proper written findings. But rule 3.800(a) may only be
used to challenge a sexual predator designation where it is
apparent from the face of the record that the defendant did
not meet the criteria for such a designation. Saintelien
v. State, 990 So.2d 494, 497 (Fla. 2008); see
also Fla. R. Crim. P. 3.800(a)(3). Here, the record
shows that Simmons qualified as a sexual predator under
section 775.21(4)(a)1.a., Florida Statutes, as he was
convicted of a first-degree felony violation of section
794.011(4)(b), Florida Statutes, for an offense occurring
after October 1, 1993. Thus, the postconviction court
properly denied this claim.