Baker v. State, 91-56

• Decision Date: 18 August 1992
• Docket Number: No. 91-56,91-56
• Parties: Dewitt Henry BAKER, Appellant, v. The STATE of Florida, Appellee. 604 So.2d 1239, 17 Fla. L. Week. D1935
• Court: Florida District Court of Appeals

Page 1239

604 So.2d 1239

Dewitt Henry BAKER, Appellant, v. The STATE of Florida, Appellee.

No. 91-56.

604 So.2d 1239, 17 Fla. L. Week. D1935

District Court of Appeal of Florida,

Third District.

Aug. 18, 1992.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Ivy Ginsberg Shanock, Asst. Atty. Gen., for appellee.

Before NESBITT, FERGUSON and COPE, JJ.

FERGUSON, Judge.

Baker appeals a conviction for capital sexual battery on a nine-year-old child. He asserts four grounds as reversible error--none of which are preserved for review by a specific and contemporaneous objection. We will not review those alleged errors because they are not fundamental in nature. Castor v. State, 365 So.2d 701 (Fla.1978).

We address Baker's contention that he should not have been sentenced under the capital offender provision of the sexual battery statute because he was not charged as a capital offender--which requires an allegation that the offender is eighteen years or older--and the jury did not find that he was over the age of eighteen. The point is reviewable as fundamental error. See Henderson v. State, 155 Fla. 487, 20 So.2d 649 (1945) (taking from jury its obligation to determine any element of the offense is denial of due process); Williams v. State, 366 So.2d 817 (Fla. 3d DCA) (jury failure to make finding as to each element of offense not harmless error), cert. denied, 375 So.2d 912 (Fla.1979).

Section 794.011(2), Florida Statutes (1991), which Baker is alleged to have violated, provides:

A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony.... If the offender is under the age of 18, that person is guilty of a life felony.

Omitting the age of the defendant in the charging document the State alleged:

... DEWITT HENRY BAKER ... did unlawfully and feloniously commit sexual battery upon A.H., a person less than twelve (12) years of age, by penetrating the VAGINA of A.H. with FINGER(S) and/or THUMB ... in violation of 794.011(2), Florida Statutes.

Although the jury was instructed that it had to find that the defendant was age of eighteen or over in order to find him guilty of a capital felony, ¹ the verdict form contained no provision for a finding as to the defendant's age. Instead the jury was permitted to, and found the defendant "Guilty" only of "Sexual Battery as charged in the Information."

Seeking to uphold the capital felony conviction, the State argues that under section 794.011 a person's age is relevant only to the means by which an offender should be punished and is not an element of the offense, relying on Jesus v. State, 565 So.2d 1361 (Fla. 4th DCA 1990). The case offers no support for sustaining the conviction as other than a life felony. There was no contention in Jesus that the information failed to allege a capital offense or that the jury failed to find that the defendant was eighteen years of age or older. Jesus's sole contention was "that the state improperly relied on his statement in establishing his age for purposes of section 794.011(2)." Id. at 1363. We hold that in the absence of either a specific allegation in the charging document, or a finding by the jury that the defendant is eighteen years of age or over, ² a conviction for capital sexual...