STATE OF FLORIDA , Appellant,

v. KHALID MUHAMMAD , Appellee

. IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D 13

- 4147

________ _____________________/ Opinion filed October 13, 2014. An appeal from the Circuit Court for Leon County

. James C. Hankinson , Judge

. Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee , for Appellant. Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee , for Appellee.

SWANSON, J

. T he State of Florida appeals 1 the trial court’s order dismissing Count I of an amended i nformation charging appellee, Khalid Muhamma d , with sexual battery

1 The state may appeal an order dismissing an indictment or information, or any count thereof , under Fl orida R ule of Crim inal P rocedure 9.140(c)(1)(A).following a trial , at the conclusion of which , the jury announced it could not reach a verdict on either Count I or Count II (the latter count charg ing appellee with kidnapping to facilitate a felony ) . The jury, instead , rendered a verdict only on Count III, f inding appell ee guilty of lewd or lascivious battery , as charged

. 2 For the following reasons, we reverse the order of dismissal.
In C ount I of the amended information, appell ee was charged wit h having committed sexual battery “by penetrating [the victim’s] vagina with his penis or any other object, without the victim’s consent” on February 1, 2012, contrary to sections 794.023 and 794.011(5), Florida Statutes (2011). In Count III of the same
amended information , appell ee was also charged with having committed lewd or lascivious battery on February 1, 2012 , by “unlawfully engage[ ing ] in sexual activity with [the victim] . . . by penetrating her vagina with his penis or any other object, ” contrary to section 800.04(4)(a), Florid a Statutes (2011). The victim was twelve years of age or older, but less than sixteen years of age at the time of the alleged offenses

. Following submission of the jury’s verdict, the trial court adjudicated appell ee guilty of lewd or lascivious battery and s entenc ed him on June 20, 2013 , to eight years’ incarceration to be followed by seven years of probation

. The state scheduled a re - trial on C ounts I and II for July 22, 2013. In the interim, appellee filed a proper motion to dismiss Count I under Flo rida Rule of

2 We have per curiam affirmed appell ee ’s conviction for thi s offense in case number 1D13

- 3114, which appeal was consolidated with the instant case for purposes of the record. 2Criminal Procedure 3.190(b), 3 asserting th at under the Fifth Amendment to the United States Constitution and article 1, section 9, of the Florida Constitution , the state was prohibited on double jeopardy grounds from subjecting h im “to multipl e prosecutions, convictions, and punishments for the same criminal offense

. ” Valdes
v. State , 3 So. 3d 1067, 1069 (Fla. 2009). See also Brown v. Ohio , 432 U.S. 161, 165 (observing the double jeopardy guarantee restrains both courts and prosecutors). Jeo pardy attaches when the jury is empaneled and sworn. Turner v. State , 37 So. 3d 132 (Fla. 2010). In ruling on the motion, the trial court acknowledged it was “clear that Courts have found sexual battery and lewd a lascivious [battery] cannot stand when based on the same act.” It went on to “confess some fault” that the “issue” had not occurred to it when it proceeded to sentence appel lee under C ount III, and that it was indeed a conviction “for double jeopardy purposes.” The court then candidly admitte d had the count been left “open” and appellee been retried and convicted on C ount I, “it would have been the State’s option to choose between the two offenses.” That not being the case, however, the trial court announced it could not “undo” what had alrea dy been done. Consequently, it granted appellee’s motion to dismiss.

3 Florida Rule of Criminal Procedure 3.190(b) provides in relevant part: “ Motions to Dismiss; Grounds. All defenses available to a defend ant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of . . . former jeopardy. . . .” 3Due to the procedural posture of the present case, we need not address , as did the trial court, the issue of whether convictions for sexual battery and lewd a nd lascivious battery can stand when based on the same act. C f. Smith v. State , 41 So. 3d 1041, 1043 (Fla. 1st DCA 2010) (holding the testimony at trial showed proof of touching to support the lewd or lascivious charge was the same touching which
occurred in the act of sexual bat tery by digital penetration and, therefore, “ the trial court fundamentally erred by entering judgment against Mr. Smith for both sexual battery and lewd or lascivious molestation ”). The United States Supreme Court has consistently adhered to the rule that a retrial following a hung jury does not violate the Double Jeopardy Clause. Richardson v. United States , 468 U.S. 317, 324 (1984). Accord Sattazahn v. Pennsylvania , 537 U.S. 101, 109 (2003). As the Supreme Court emphasized in Richardson , “the protecti on of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy,” but “the failure of the jury to reach a verdict is not an event which terminates jeopardy.” 468 U.S. at 325. In such a n
event , the Court stressed “[t]he Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree.” Id. at 326. Acc ord Rose v. Duggar , 508 So. 2d 321, 323 (Fla. 1987) (holding “article I, section 9 of the Florida Constitution does not prohibit a defendant’s retrial when a prior trial

4has been concluded by mi strial because of a hung jury”). In Harris v. State , 449
So. 2d 892 (Fla. 1st DCA 1984) , we emphasized “[t] he double jeopardy provisions of the United States and Florida constitutions protect ‘ against multiple punishments for a single criminal offense ,’ not against prosecution for multiple offenses arising out of a single criminal episode. ” Id. at 895 n. 1 (quoting Bell v.
State , 369 So. 2d 932, 934 (Fla. 1979)) (emphasis added). We continued :

“ Moreover, the declaration of a mistrial based upon the jury's inability to agree on a verdict does not constitute former j eopardy, and a defendant may be retried for the same offense. ” Id. (citations omitted).
More r ecently, in Yeager v. United States , 557 U.S. 129 (2009), the Supreme Court carefully explained why a jury ’s inability to reach a verdict on one count does not a ffect another count upon which the jury was able to reach a verdict: Because a jury speaks only through its verdict, its failure to reach a verdict cannot

— by negative implication

— yield a piece of information that helps put together the trial puzzle. . . . Unlike the pleadings, the jury charge, or the evidence introduced by the parties, there is no way to decipher what a hung count represents. Even in the usual sense of “relevance,” a hung count hardly “make[s] the existence of any fact .

. . more probable or less probable.” A host of reasons

— sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few

— could work alone or in tandem to cause a jury to hang. To ascribe meaning to a hung count would presume an ability to id entify which factor was at play in the jury room. But that is not reasoned analysis; it is guesswork. Such conjecture about possible reasons for a jury ’ s failure to reach a decision should play no part in

5assessing the legal consequences of a unanimous v erdict that the jurors did return. Id. at 221

- 22 (citations and footnotes omitted). In Avila v. State , 86 So. 3d 511 (Fla. 2d DCA 2012), the Second District Court of Appeal interpreted the Supreme Court’s language in Yeager to mean that a jury’s inabilit y to reach a verdict on a lesser charge does not equate to an acquittal of the greater charge. Id. at 516. But

see Vitagliano v. State , 680 So. 2d 500 (Fla. 1st DCA 1996) (holding double jeopardy prohibits retrial on a sexual battery charge on whi ch the jury was deadlocked, when the jury acquitted the defendant of the lewd and lascivious conduct charge resting on the same facts as the sexual battery charge). In th e present case, appellee was not acquitted of an offense arising from the same facts as the ch arge on which the jury was hung , as occurred in Vitagliano

. Applying the Yeager analysis h ere , we conclude the jury’s guilty verd ict on C ount
III and appell ee ’s conviction on that count said absolutely nothing concerning the sexual battery offense c harged in Count I

. Thus, b ecause jeopa rdy was never terminated as to C ount I, the trial court er r ed in dismissing that count. Consequently , the order of dismissal is REVERSED and the cause is REMANDED for further proceedings consistent with this opinion. ROBERTS and MARSTILLER, JJ., CONCUR.

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