Bashans v. State, OO-70
| Decision Date | 07 October 1980 |
| Docket Number | No. OO-70,OO-70 |
| Citation | 388 So.2d 1303 |
| Parties | Ronald C. BASHANS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
Appellant appeals his jury conviction of sexual battery in violation of § 794.011, Florida Statutes. We reverse and remand for a new trial.
The indictment returned against appellant is in two counts. The first count charges sexual battery and the second solicitation for prostitution. The sexual battery count of the indictment states as follows:
RONALD C. BASHANS on the 18th day of March, 1978, in Leon County, Florida did commit sexual battery upon Corrine Lines, a person 14 years of age by oral or vaginal penetration, without her consent while she was physically helpless to resist or did use physical force and violence not likely to cause serious personal injury, contrary to § 794.011, Florida Statutes.
The jury returned a verdict on Count I which stated as follows:
"We, the jury, find the defendant, Ronald C. Bashans, guilty as charged of sexual battery."
The jury returned a verdict of not guilty on Count II. Appellant was adjudged guilty of Count I, sexual battery, and sentenced to a prison term of 15 years.
Appellant first contends that the indictment is fatally defective as to Count I and will not support a judgment of conviction because it fails to charge a specific offense. We agree. Count I does not charge a specific offense but charges two separate offenses-one a felony of the first degree, under § 794.011(4)(a), and the other a felony of the second degree, under § 794.011(5). The first degree felony carries a maximum sentence of life imprisonment and the second a maximum of 15 years in prison. In support of his contention, appellant cites an 1880 opinion of the Supreme Court of Florida-McGahagin v. State, 17 Fla. 665. That opinion is directly on point and requires reversal. Thus, we must reverse and remand for a new trial.
Appellee, in reply, makes no reference to McGahagin but argues that Irvin v. State, 52 Fla. 51, 41 So. 785 (1906), and other cases require that a defendant must attack an indictment for duplicity before the verdict is rendered or the defect is waived. None of the authorities relied upon by appellee, however, deal with the proposition presented to us in the case sub judice and which the Supreme Court was confronted with in McGahagin -an indictment charging two separate offenses in the same count and a general verdict of guilty on such count. McGahagin holds that such a verdict and judgment cannot stand as it cannot be determined which of the alleged offenses the jury found the defendant guilty of having committed. 1
The decisions cited by appellee finding waiver only apply where a single crime can be committed in alternative ways and the indictment alleges alternatively several acts, any one of which would support a guilty verdict for the one offense. Here, however, and in McGahagin, the two alternatives each constituted a separate and distinct offense. It is impossible to tell whether the jury found appellant guilty of the first degree felony or the second degree felony. While this point has been raised for the first time on this appeal, we must entertain the question because it points out fundamental error. We suggest that this dilemma could have been cured prior to the jury's verdict by submitting special verdicts to the jury-one on the first degree felony and the other on the second degree felony.
Appellant's second point contends that the evidence is insufficient to support the verdict, and appellant must, therefore be discharged. From a careful examination of the record, we find the evidence was not sufficient to have supported a guilty verdict for the first degree felony but was sufficient to have supported a guilty verdict for the second degree felony. Since it is impossible to determine whether the jury found appellant guilty of the charge on which the evidence was sufficient or guilty of the charge on which the evidence was insufficient, this point also requires a new...
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...REVERSED in part and REMANDED. DAUKSCH, C. J., and COBB, J., concur. 1 Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Bashans v. State, 388 So.2d 1303 (Fla. 1st DCA 1980).2 Austin v. State, 40 So.2d 896 (Fla.1949).3 Foster v. State, 286 So.2d 549 (Fla.1973); Bruton v. State, 326 So.2d 186 (Fla......
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...it fails to allege a specific offense. In support of his argument, defendant has cited the decision of this Court in Bashans v. State, 388 So.2d 1303 (Fla. 1st DCA 1980). At first blush, his argument would appear to be well founded. Citing McGahagin v. State, 17 Fla. 665 (Fla.1880), this Co......
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