Opinion
Case No. 5D19-179
07-23-2019
JAMES DANIEL KASPER, Appellant, v. STATE OF FLORIDA, Appellee.
James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Volusia County, Raul A. Zambrano, Judge. James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee. LAMBERT, J.
James Daniel Kasper appeals the judgment and sentence imposed by the trial court following his open, guilty plea to one count of committing lewd or lascivious molestation upon a person under the age of twelve years by a person over the age of eighteen years. His sole argument on appeal is that the court erred in denying his dispositive motion to dismiss the information on double jeopardy grounds because his present conviction and sentence are based upon the same conduct for which Kasper was separately punished in an earlier federal court case, where Kasper pleaded guilty and received a lengthy prison sentence. We affirm.
We have jurisdiction under Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i). --------
The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution provide that no person may be "twice put in jeopardy" for the same "offense." However, under what is referred to as the "dual-sovereignty" doctrine, an act that constitutes a crime under both federal and state law can be separately prosecuted by both sovereigns without violating the prohibition against double jeopardy because the offenses are separate. See United States v. Lanza, 260 U.S. 377, 382 (1922) ("[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.").
Here, the trial court denied Kasper's motion to dismiss based on Booth v. State, 436 So. 2d 36 (Fla. 1983). In Booth, the Florida Supreme Court adhered to the aforementioned doctrine of dual sovereignty, concluding that there was no double jeopardy violation by the State prosecuting the defendant on criminal charges arising out of a drug transaction following a federal prosecution pertaining to the same drugs and transaction. Id. at 37. Kasper candidly acknowledges that Booth is controlling but argues that during its most recent term, the United States Supreme Court accepted jurisdiction of a case to consider and address the continuing viability of the dual-sovereignty doctrine. Kasper is correct; however, in Gamble v. United States, 139 S. Ct. 1960 (2019), the Court specifically declined to overturn the dual-sovereignty doctrine.
Accordingly, because the trial court correctly concluded that there was no double jeopardy violation, we affirm Kasper's judgment and sentence.
AFFIRMED. EVANDER, C.J., and BERGER, J., concur.