C.T., In Interest of, 90-2352

• Decision Date: 24 July 1991
• Docket Number: No. 90-2352,90-2352
• Citation: 582 So.2d 1245
• Parties: In the Interest of C.T., a child. 582 So.2d 1245, 16 Fla. L. Week. D1900
• Court: Florida District Court of Appeals

Page 1245

582 So.2d 1245

In the Interest of C.T., a child.

No. 90-2352.

582 So.2d 1245, 16 Fla. L. Week. D1900

District Court of Appeal of Florida Fourth District.

July 24, 1991.

Richard L. Jorandby, Public Defender, and Robert Friedman, Asst. Public Defender, West Palm Beach, for appellant-C.T., a child.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for appellee-State of Florida.

PER CURIAM.

Appellant, a minor, was charged by petition for delinquency with attempted battery on a law enforcement officer. At the disposition hearing, the arresting deputy testified that he was dispatched to Indian River Memorial Hospital on a disturbance call involving appellant, who was very intoxicated with an extremely high blood alcohol level of .30. The deputy, in uniform and wearing his badge, tried to get appellant up from a gurney by shaking him and touching him on the shoulders whereupon appellant took several swings at him.

Appellant testified that on the night in question he drank three bottles of Jim Beam; that he did not remember lying on the side of the road--having been picked up there by an ambulance--nor being at the hospital. He said that he did not intend to strike at a deputy.

The trial court considered disorderly intoxication to be a lesser included offense and found appellant guilty thereof, while finding him not guilty of attempted battery on a law enforcement officer because his voluntary intoxication negated the required intent. It adjudicated appellant delinquent and sentenced him to community control.

The state agrees disorderly intoxication was not within the scope of the petition, but claims the error not to be fundamental. We disagree. In Rose v. State, 507 So.2d 630 (Fla. 5th DCA 1987), the court said:

It is elementary that the conviction of a crime not charged violates constitutional due process as well as the constitutional right of the accused in all criminal cases to be informed of the nature and cause of the accusation against him. The violation of such constitutional rights constitutes fundamental error and is presumptively prejudicial and most certainly not within the discretion of any judge to permit.

Id. at 631-32. Disorderly intoxication was not a lesser included offense. Accordingly, we reverse.

LETTS and DELL, JJ., concur.

GLICKSTEIN, C.J., concurs specially with opinion.

GLICKSTEIN, Chief Judge, concurring specially.

I concur with the analysis and result of the majority opinion.

While the juvenile has won his case, he may have a bigger fight to win, as evidenced by his use of alcohol. He is fortunate to have survived this incident, having been found lying on the side of the road.

There is allusion in the record to the child's attempt at suicide, of the father's suicide attempt as well, and the mother's wish that her son not be returned home because of his use of alcohol. Others having observed that "It's never too late to have a happy childhood," I hope somewhere in or out of the system there is an opportunity to address and resolve the causative factors of the child's drinking.

Recently, the following observations were made:

The 13-year-old, the daughter of two lawyers, had been drinking for about four years when she showed up for gymnastics practice at her private school in Massachusetts, too drunk to perform. A 15-year-old boy told a juvenile court judge: "I'm not a problem drinker. I only have a six-pack of beer an evening." A 16-year-old regularly consumed enough vodka and beer to have hallucinations in her kitchen, seeing skeletons, knives and images she took for visions of Satan's realm.

These are the children of alcohol, whose numbers have waxed and waned over the centuries, from the days when ancient Greeks worshiped Dionysus, the god of wine, to London's Gin Lane in the late 18th century, to America's suburban malls and fraternity houses today. They are the inheritors--some would say the victims--of the country's ambivalence about the intoxicant of the ages.

...