Tampa Bay Criminal Defense Lawyer Blog
When you (or a friend or relative) are facing a criminal trial, there are lots of ways in which the prosecution can make mistakes. The state can bring a case that is too old (in other words, outside the statute of limitations), that is based upon illegally obtained evidence (proof that is barred under the Fourth Amendment), or that violates your constitutional protection against double jeopardy. Two cases, one from here in the Tampa Bay area (recently decided by the Second District Court of Appeal) and one from across the state (decided earlier this year by the Fifth District Court of Appeal), present two different scenarios in which the state can stack charges in a way that violates double jeopardy.
A Single Criminal Episode and Double Jeopardy
The nearby case, which originated in Pasco County, involved a man, a travel trailer, and a firearm. Cecil Lambert stood accused of two counts of second-degree murder and one count of carrying a concealed weapon. All of these charges arose from an exchange outside a travel trailer on land that Lambert owned. Lambert allegedly shot at one man and also placed his gun against the head of a woman, pulling the trigger only to have the gun jam. At his trial, the jury did not find Lambert guilty of any homicide crime. Instead, on the murder charges, the jury decided to convict on two counts of “improper exhibition of a dangerous weapon,” which was a lesser included offense. The jury did, however, convict on the concealed firearm charge. Lambert received a sentence of time served on the improper exhibition convictions and five years on the concealed weapon charge.
Lambert appealed and won. The problem with his verdict related to the pair of improper exhibition convictions. The facts in this case clearly showed a single instance of Lambert wielding his gun in the presence of his victims. In some cases, having multiple victims can mean a possible conviction on multiple charges, but not in this circumstance. The illegal-exhibition statute expressly used the language “in the presence of one or more persons.” That wording meant that, if the accused person engages in one act of exhibiting his weapon, that translates to one count of improper exhibition, regardless of the number of victims involved. Therefore, even though Lambert exhibited his weapon in front of more than one victim, he only brandished it once, so he could only be guilty of one count. By stacking two counts of illegal exhibition based upon this one single criminal episode, the state violated Lambert’s constitutional protection against double jeopardy.
Lesser Included Offenses and Double Jeopardy
Another way the state can violate double jeopardy is by seeking to convict an accused person on two crimes, one of which is a lesser included offense of the other. An example of this was the case of Brandon Stapler from Clay County. Stapler engaged in online sexual communications with someone he believed was a 12-year-old girl, as well as with her father. Both the fictitious girl and her fictitious father were a St. Johns County law enforcement officer. When Stapler traveled to an interstate motel in St. Augustine, officers arrested him. The state ultimately secured a conviction in Stapler’s case of the crimes of “using a computer to solicit a person believed to be a parent for sex with a minor” (under Section 847.0135(3)(b) of the Florida Statutes) and “traveling after using a computer to solicit a person believed to be a parent for sex with a minor” (under Section 847.0135(4)(b) of the Florida Statutes).
Stapler appealed and was successful. The flaw in his case was that the Subsection (3)(b) offense was a lesser included offense within the Subsection (4)(b) crime. The latter charge had all the same criminal elements as the former, except for travel. The legislature’s intent in creating separate crimes for each was not to punish offenders for both crimes based upon a single occurrence but to make offenders who traveled to engage in these type of sex crimes subject to more severe penalties (a second-degree felony instead of a third-degree felony).
Following this interpretation of the legislature’s intent, that made the Subsection (3)(b) crime a lesser included offense of the Subsection (4)(b) charge. When an accused person is convicted, based upon on a single criminal episode, of both a crime and a second crime that is a lesser included offense within the first, that violates the accused’s right to be free of double jeopardy. That’s what happened to Stapler, which led to the Fifth Circuit’s decision to throw out the Subsection (3)(b) conviction.
If you or a loved one are facing a criminal case involving multiple charges, or you have questions about double jeopardy law, contact the knowledgeable Tampa Bay sex crime attorneys at Blake & Dorsten P.A. Our attorneys have many years of experience defending the accused and helping to protect their rights. Call us today at (727) 286-6141 to schedule your free initial consultation and get the answers and assistance you need.
More Blog Posts:
Challenging the Standardized Field Sobriety Tests, Tampa Bay Criminal Defense Lawyer Blog, March 22, 2016
Pinellas woman accused of fake online profile, encouraging sex assault, Tampa Bay Criminal Defense Lawyer Blog, Dec. 4, 2015