Duke v. State, 82-2087
| Decision Date | 11 January 1984 |
| Docket Number | No. 82-2087,82-2087 |
| Citation | 444 So.2d 492 |
| Parties | Carl DUKE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
Appellant Carl Duke appeals from judgments and sentences entered after jury verdicts finding him guilty of two counts of attempted sexual battery under section 794.011(2), Florida Statutes (1981). A review of the record reveals that there was sufficient, competent evidence to support and uphold the verdicts. Therefore, we do not deem it necessary to set forth the odious facts involved here.
In the two-count information, appellant was charged with one count of attempting to insert his penis in the anus of a five-year-old female child and a second, separate count of attempting to insert his penis in the vagina of said child.
The trial court sentenced appellant to thirty years on Count I and thirty years on Count II to run consecutive to the term imposed on Count I. In addition, the court ordered appellant, who had been adjudged insolvent, to pay court costs pursuant to sections 960.20 and 943.25(4), Florida Statutes (1981).
Appellant first alleges that the trial court committed reversible error in sentencing him to thirty years on each count. In support of his position, he relies on the authority of our supreme court in Buford v. State, 403 So.2d 943 (Fla.1981), wherein that court announced that a violation of section 794.011(2) is no longer a capital crime.
Appellant contends that inasmuch as a conviction under 794.011(2) is no longer a capital felony, it drops one category to life felony. § 775.081(1), Fla.Stat. Therefore, assuming sexual battery is only a life felony, attempted sexual battery is a second degree felony which carries a maximum term of fifteen years. §§ 777.04(4)(b) and 775.082(3)(c), Fla.Stat.
As further support for his position, appellant directs us to the holding of our sister court in Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983). There, as here, the defendant was charged with sexual battery under section 794.011(2), Florida Statutes. In Hogan, the court rejected the argument that the trial court erred in ordering a six-person jury by reasoning that all facets of sexual battery as a capital offense disappeared when the death penalty for that offense was abolished. The court also held, as appellant argues, that sexual battery is a life felony, with the attempt to commit carrying a maximum sentence of fifteen years.
What appellant apparently fails to recognize is this court's opinion in Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983) 1 that held
even though sexual battery under section 794.011(2) is not a capital crime in the sense that it may result in the imposition of the death penalty, the punishment for that crime must still be imposed under section 775.082(1) to its constitutional limits. This means that one convicted under section 794.011(2) must be automatically "punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole." Section 775.082(1).
In so holding, this court followed the lead of the Florida Supreme Court in Donaldson v. Sack, 265 So.2d 499 (Fla.1972) wherein the court preserved the sentencing under section 775.082(1) when it said:
We find no difficulty with a continuation of the sentencing for these former "capital offenses" under § 775.082(1) as automatically life imprisonment upon conviction, inasmuch as that is the only offense left in the statute.... The elimination of the death penalty from the statute does not of course destroy the entire statute. We have steadfastly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so and of course this clearly exists in these circumstances.
265 So.2d at 502-03. Because of the foregoing language in Donaldson, we expressly disagreed with the premise in Hogan that sexual battery under 794.011(2) is a life felony for all purposes including sentencing. Therefore, applying our analysis in Rusaw to the instant case, appellant committed two first degree felonies, § 777.04(4)(a), Fla.Stat., and therefore was correctly sentenced to thirty years for each violation. § 775.082(3)(b).
Appellant next contends the attack on the victim constituted only a single violation of the sexual battery statute and therefore the trial court erred in sentencing him for both offenses. Specifically, appellant submits that the elapsed period of time (a matter of seconds) was insufficient to separate one attempted penetration from the other. We disagree.
Section 794.011(1)(f) defines sexual battery as follows:
"Sexual battery" means 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.
As the statute indicates, each act is a sexual battery of a separate character and type which logically requires different elements of proof. Clearly, penetration of the vagina and penetration of the anus are distinct acts necessary to complete each sexual battery. Therefore, notwithstanding the short interval of time involved here, we believe each act is a separate criminal offense.
Appellant cites the case of Wade v. State, 368 So.2d 76 (Fla. 4th DCA 1979), as authority for his contention on this point. However, the opinion in Wade did not articulate the facts relied upon by the court in making its determination; and, therefore, we are unable to conclude whether the case is applicable to the factual situation before us.
In his third point, appellant asserts that the trial court erred in pronouncing sentence when the court had reasonable grounds to believe appellant was insane. At the sentencing hearing, counsel for appellant argued that based on the trial testimony and on the reports of the four court-appointed experts indicating appellant's permanent brain...
To continue reading
Request your trial
-
Lee v. State, CASE NO. 1D15-0943
...(holding that appellant had time to form a new criminal intent while waiting for the victim to emerge from the bathroom); Duke v. State, 444 So. 2d 492, 494 (Fla. 2d DCA 1984) (holding that "a matter of seconds" was sufficient for appellant to form a new criminal intent between sexual batte......
-
Lee v. State
...that appellant had time to form a new criminal intent while waiting for the victim to emerge from the bathroom); Duke v. State , 444 So.2d 492, 494 (Fla. 2d DCA 1984) (holding that "a matter of seconds" was sufficient for appellant to form a new criminal intent between sexual battery offens......
-
State v. Boozer
...see State v. Hill, 104 Ariz. 238, 450 P.2d 696 (1969); People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978); Duke v. State, 444 So.2d 492 (Fla.Dist.Ct.App.1984); State v. Pia, 55 Haw. 14, 514 P.2d 580 (1973); People v. Helton, 39 Ill.App.3d 672, 349 N.E.2d 508 (1976); Morris v. State, 272 In......
-
Saavedra v. State
...2 Sexual battery of a separate character and type requiring different elements of proof warrant multiple punishments. See Duke v. State, 444 So.2d 492 (Fla. 2nd DCA ) (vaginal penetration followed a moment later by anal penetration), aff'd, 456 So.2d 893 (Fla.1984); Grunzel v. State, 484 So......