Bass v. State
| Citation | 263 So.2d 611 |
| Decision Date | 19 May 1972 |
| Docket Number | No. 71--837,71--837 |
| Parties | Jimmy BASS, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Walter N. Colbath, Jr., Public Defender, and Charles W. Musgrove, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., and Andrew I. Friedrich and Wallace E. Allbritton, Asst. Attys. Gen., Tallahassee, for appellee.
This is an appeal from a judgment of guilty and sentence of the appellant in the Criminal Court of Record for Palm Beach County. The appellant was charged in three counts as follows: Court One with assault with intent to commit rape; Court Two with lewd and lascivious assault; and, Count Three with assault and battery. The state was required to make an election between Counts One and Two, and chose Court Two on which to proceed. The court ruled that Court Three was a lesser included offense to Court Two and struck it over appellant's objection. The jury found appellant guilty of Count Two. A motion for a new trial was filed and denied.
The main question on appeal is whether Count Two stated an offense under the law and whether it was error to permit the appellant to be tried on said count. Count Two is as follows:
'Informant aforesaid, under oath, further information makes that JIMMY BASS on the 23rd day of June, 1970 in the County and State aforesaid, unlawfully did handle, fondle or make an assault upon DEBORAH LYNN KELLEY, a female child under the age of fourteen years, in a lewd, lascivious and indecent manner, to-wit: did grab said DEBORAH LYNN KELLEY and strike her about the face with intent to have sexual intercourse with the said DEBORAH LYNN KELLEY, contrary to Florida Statute 800.04 (F.S.A.), . . .'
Section 800.04, Florida Statutes 1969, F.S.A., provides:
'Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without intent to commit rape where such child is female, shall be deemed guilty of a felony and punished by imprisonment in the state prison or county jail for not more than ten years.'
Count Two omitted the words, 'without intent to commit rape,' and included the words, 'did grab said DEBORAH LYNN KELLEY and strike her about the face with intent to have sexual intercourse . . .'
We find this to be error but not fatal error. In the first instance Count Two ended...
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Lanier v. State
...offense under former Section 800.04 where allegation that defendant acted without intent to commit rape omitted); cf. Bass v. State, 263 So.2d 611 (Fla. 4th DCA), cert. denied, 271 So.2d 142 (Fla.1972), is inapplicable to his conduct despite the fact that he indisputably acted with the inte......
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Watson v. Dugger
...intent on the part of the defendant to engage in sexual conduct without the consent of the victim. Id. at 222; cf. Bass v. State, 263 So.2d 611 (Fla.Dist.Ct.App.1972) (assault with intent to commit rape is a specific intent crime requiring State to prove defendant knowingly and willfully ac......
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Jones v. State, 81-230
...the omitted words, it cannot be said that the imperfection of the information prejudiced the defendant in his defense. Bass v. State, 263 So.2d 611 (Fla. 4th DCA 1972), cert. denied, 271 So.2d 142 (Fla.1972). See also, United States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir. Appellant furt......
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Asmer v. State, s. 81-1521
...proceeds. Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980), Kiddy v. State, 378 So.2d 1332 (Fla. 4th DCA 1980), Bass v. State, 263 So.2d 611 (Fla. 4th DCA 1972). The principles reviewed herein have enjoyed long standing and consistent application by the courts of this State. A defendant......