FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1657
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ROBERT O. SIMMONS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
Martin A. Fitzpatrick, Judge.
October 17, 2019
RAY, C.J.
Robert Simmons challenges the denial of his motion to correct
illegal sentence filed under Florida Rule of Criminal Procedure
3.800(a). We affirm.
In 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).
In 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.
Additionally, 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).
In 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.
Ground 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”).
In 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
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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.
AFFIRMED.
WOLF and WINOKUR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Robert O. Simmons, pro se, Appellant.
Ashley Moody, Attorney General, and Sharon Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
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