Banks v. State
| Decision Date | 12 November 1976 |
| Docket Number | No. 49081,49081 |
| Citation | 342 So.2d 469 |
| Parties | Howard BANKS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Louis G. Carres, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
Having been transferred to us from the District Court of Appeal, First District, this cause is before us on direct appeal from the judgment and sentence of the Circuit Court in and for Duval County, that court having inherently passed on the constitutionality of Section 775.082(1), Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.
Appellant was charged by indictment with the crime of involuntary sexual battery in that he did unlawfully commit a sexual battery upon an 8-year-old boy by oral union with the sexual organ of the young boy contrary to Section 794.011(2), Florida Statutes.
After jury trial resulted in a verdict of guilty as charged, motion was filed to certify the defendant for a hearing and examination to determine whether he is a mentally disordered sex offender which motion was granted. The trial judge appointed two psychiatrists to examine appellant.
He was adjudicated guilty and the State and the defendant stipulated to a sentence of life rather than death and, thereby, waived the second portion of the bifurcated trial required in capital cases.
Appellant was determined to be a mentally disordered sex offender within the meaning of Section 917.13, Florida Statutes, and was committed to the Florida State Hospital, Chattahoochee, Florida, for care, treatment, and rehabilitation under the provisions of Section 917.28, Florida Statutes.
On appeal to this Court, appellant challenges the judgment and sentence of the trial court on the grounds that the evidence was insufficient as a matter of law to prove a 'union' as required by Section 794.011, Florida Statutes, and that Section 775.082(1), Florida Statutes, which carries a minimum of 25 years imprisonment prior to eligibility for parole constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States, and Article I, Section 17, of the Constitution of Florida.
Section 794.011(2), Florida Statutes, provides:
'Sexual battery' is defined in Section 794.011(1)(f), Florida Statutes to mean '. . . oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.'
Our review of the record before us supports the State's contention that the evidence is sufficient as a matter of law to prove a 'union' as required by Chapter 794, Florida Statutes, for an adjudication of guilt of sexual battery upon a person 11 years old or younger. Appellant placed his mouth on the penis of the 8 year old victim and drank his urine. There was a 'union' by appellant's mouth (oral) with the young boy's penis.
Appellant attacks the constitutionality of the minimum 25 years imprisonment prior to eligibility for parole found in Section 775.082(1), Florida Statutes, as it applies to him sub judice by Section 794.011(2), Florida Statutes, on the basis that said punishment is cruel and unusual in light of the act committed by him. We cannot agree.
Recently in Dorminey v. State, 314 So.2d 134 (Fla.1975), and Owens v. State, 316 So.2d 537 (Fla.1975), this Court upheld the constitutional validity of Section 755.082(1), Florida Statutes, against the challenge of legislative usurpation of...
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Charles v. State
...court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence."); Banks v. State, 342 So.2d 469, 470 (Fla.1976) (stating that an appellate court lacks jurisdiction to interfere if a sentence is within the limits prescribed by the legisl......
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Hamilton v. State
...of cannabis by Section 893.13 does not violate the constitutional proscription against cruel and unusual punishment. Cf. Banks v. State, 342 So.2d 469 (Fla.1976). The defendant also alleges that he was denied a fair and impartial trial because the trial judge commented on the evidence, chas......
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Hall v. State
...punishment. See e.g., State v. Benitez, 395 So.2d 514, 518 (Fla.1981); McArthur v. State, 351 So.2d 972 (Fla. 1977); Banks v. State, 342 So.2d 469 (Fla. 1976); O'Donnell v. State, 326 So.2d 4 (Fla.1975). Moreover, under the Code, a trial court is free to sentence below the lowest permissibl......
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Adaway v. State
...life imprisonment with the possibility of parole after twenty-five years complies with both constitutional provisions. See Banks v. State, 342 So.2d 469 (Fla.1976). We reach the same conclusion now, notwithstanding the Legislature's elimination of the possibility of I. FACTS The defendant, ......