My client kept getting into trouble with lewd acts. His preferred act was to masturbate in public bathrooms, out in the open. As you/he might expect, a young boy walked in while this was going on, and my client ended up with a felony conviction. Actually, this was his second lewd act conviction for the same behavior. Ouch.
This very same client–with two priors–decided it would be a good idea to (again) masturbate in public, across the street from a high school here in Orlando. Now, I suppose masturbating at midnight, in the dark, wouldn’t be the end of the world, but he was pleasuring himself, to completion, in front of several cheerleaders after a hard afternoon of practice (for legal purposes, I had to disclose the extent of the lewdness involved by informing you the act was ‘completed’, but as a favor, I just deleted several crude jokes that fit nicely here). Several cheerleaders witnessed my client’s lewd act, and my investigation discovered that some of them were underage–yet the cops only interviewed a couple of the 18 years old cheerleaders! As such, the cop arrested him on four misdemeanor charges (no felonies, yet).
It doesn’t take a rocket scientist to figure out that this case had the potential to be upgraded into a nasty prison felony, given the age of a few of the cheerleaders. So, my strategy was to plea to the misdemeanors at arraignment. The prosecutor objected to our plea (to the bench), claiming that the case was going to be upgraded to felony court as soon as the sex crimes division had the opportunity to review it. However, the freshly minted prosecutor didn’t drop the charges to prevent our plea, and I’m glad he didn’t because the plea on the misdemeanors caused the future felony to be dismissed. Now, with that lead in, let’s delve into our case of the day, Lafferty v. State, 114 So. 3d 1115 (Fla. 2d DCA 2013).
Lafferty was convicted of robbery by sudden snatching, a third degree felony. The robbery arose out of a purse snatching in a Target parking lot, to which Lafferty had already pled when it was a misdemeanor petit theft. Lafferty’s criminal defense attorney filed a Motion to Dismissthe charge, alleging that a second conviction for this same incident would violate our constitutional right to be free from double jeopardy. Unfortunately, the trial judge denied the Motion to Dismiss, and that’s why we have an appeal to talk about.
First, Lafferty was arrested on the petit theftof the purse, and the prosecution told the court that the robbery was still under investigation (basically, robbery is a theft by some sort of force or threat of force). Eventually, the state filed a robbery charge. Lafferty pled to robbery by sudden snatching and received a prison sentence. So, did the robbery charge violate Lafferty’s double jeopardy rights? Let’s look at how this works.
The appeals court analysis began with Florida Statute 775.021(4), commonly referred to as the “same-elements test” (or “Blockburger test”). The test states that, if all of the less serious charge’s elements are all contained within the more serious charge’s elements, then a conviction on the more serious charge violates double jeopardy. To apply the test in this case, we look at the elements of the petit theft Lafferty pled to. Every one of these elements are also contained in the crime of robbery by sudden snatching. As such, the robbery charge must be dismissed. And, the appeals court did just that.
I’ve over simplified this case a bit, because its Wild Card Saturday and the Chiefs/Colts game is looking good. But, I need to clarify a few points here. It only takes a few different elements between the two crimes for the charges to not violate double jeopardy. For example, if the state charged Lafferty with a first degree misdemeanor petit theft, this charge has an additional element that the value of the stolen item must be above $100. By having this one additional element different from robbery (robbery does not have a value element), Lafferty’s conviction for robbery would have been upheld. Lafferty’s petit theft conviction (a second degree misdemeanor) does not require any proof of value. Our Florida Supreme Court held that a conviction for felony grand theft and a conviction for robbery with a firearm (of the same item as the grand theft) does not violate double jeopardy because grand theft requires proof of value (proof that the item stolen is worth more than $300). Robbery does not require proof of value, thus different elements, thus no double jeopardy problems.