Funiciello v. State, 5D14–2724.
| Decision Date | 06 November 2015 |
| Docket Number | No. 5D14–2724.,5D14–2724. |
| Citation | 179 So.3d 388 |
| Parties | Italo FUNICIELLO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William R. Ponall and John M. Kelly, of Snure & Ponall, P.A., Winter Park, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Italo Funiciello (the defendant) appeals his convictions on two counts of lewd or lascivious battery. Determining that the trial court erred in failing to give a requested jury instruction on a permissive lesser-included offense, we reverse.
The defendant was charged with two counts of lewd or lascivious battery.1 The matter proceeded to trial, before a jury, and the jury found the defendant guilty as charged. The trial court entered judgment in accordance with the jury's verdict, and then sentenced the defendant to consecutive terms of eight years' imprisonment. This appeal timely followed.
The defendant argues that the trial court reversibly erred by refusing his request for a standard jury instruction on the category-two lesser-included offense of unnatural and lascivious act. We agree.
"A trial court's decision to give or withhold a proposed jury instruction is reviewed under the abuse of discretion standard of review." Rodriguez v. State, 172 So.3d 540, 544 (Fla. 5th DCA 2015). The law applicable to category-two lesser-included offenses is summarized as follows:
Unlike an instruction on a necessary or category one lesser which must be given upon request even if unsupported by the evidence, an instruction on a permissive lesser is only given when supported by the pleadings and evidence. See Boland v. State, 893 So.2d 683, 686 (Fla. 2d DCA 2005). In that regard, "[t]he trial court is given the discretion to ‘analyze the information or indictment and the proof to determine if elements of category [two] crimes may have been alleged and proved.’ " Cooper v. State, 512 So.2d 1071, 1072 (Fla. 1st DCA 1987) (quoting State v. Wimberly, 498 So.2d 929, 931 (Fla.1986) ).
Wong v. State, ––– So.3d ––––, 40 Fla. L. Weekly D2122, 2015 WL 5306154 (Fla. 2d DCA Sept. 11, 2015).
The defendant was charged with two counts of lewd or lascivious battery; one count alleged digital penetration and the other alleged penile union or penetration with the victim's vagina. The statute reads, in relevant part, as follows:
§ 800.04(4)(a), Fla. Stat. (2011). The related standard jury instruction reads:
Fla. Std. Jury Instr. (Crim.) 11.10(a). Importantly, the standard jury instruction for lewd or lascivious battery expressly lists the crime of unnatural and lascivious act as a category-two lesser-included offense. That offense is defined as follows:
§ 800.02, Fla. Stat. (2011). The applicable standard jury instruction reads:
Fla. Std. Jury Instr. (Crim.) 11.8.
Here, defense counsel requested a jury instruction on the offense of unnatural and lascivious act. The court stated that the instruction would not be given because "there might have been some evidence", but the elements were not set forth in the information. The defendant challenges this ruling, arguing that the issuance of an instruction on the offense of unnatural and lascivious act was warranted in this case because the information charged digital penetration and sexual intercourse between an adult male and a female child which are both unnatural and lascivious acts. The State responds by suggesting that the term "unnatural acts" applies only to alleged criminal acts "not otherwise specifically criminalized under the law" and, therefore, the issuance of the jury instruction for unnatural and lascivious act is not warranted in cases, like this one, where the defendant is charged with committing a designated criminalized sex offense.
In Horn v. State, 120 So.3d 1 (Fla. 1st DCA 2012), the defendant appealed his convictions for sexual battery and attempted lewd or lascivious molestation. Both crimes involved a victim under the age of twelve. He argued, inter alia, that the trial court reversibly erred in refusing his request for an instruction on the permissive lesser-included offense of unnatural and lascivious act. Citing to Williams v. State, 627 So.2d 1279 (Fla. 1st DCA 1993), the Horn court held that the trial court erred in refusing the requested instruction.
In Williams, the defendant appealed his judgment and sentence for lewd, lascivious, or indecent assault upon a child under sixteen years of age. During the charge conference, the trial court denied the defendant's request for an instruction on the permissive lesser-included offense of unnatural and lascivious act. The First District reversed, explaining:
Williams v. State, 627 So.2d at 1280–81. This ruling refutes the State's argument raised in this appeal that the term "unnatural" applies only to acts "not otherwise specifically criminalized under the law" since the Williams court required the issuance of the permissive lesser-included unnatural and lascivious act instruction in a lewd or lascivious assault case.
In another First District case, Sherrer v. State, 898 So.2d 260 (Fla. 1st DCA 2005), the defendant was...
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Wong v. State
...two permissive lesser included offense of both lewd or lascivious molestation and lewd or lascivious battery. See Funiciello v. State , 179 So.3d 388, 391 (Fla. 5th DCA 2015) (lewd or lascivious battery involving digital penetration); Horn , 120 So.3d at 2 (lewd or lascivious molestation in......
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State v. Knighton
...that Knighton was entitled to the unnatural and lascivious instruction because, agreeing with the Fifth District in Funiciello v. State, 179 So.3d 388 (Fla. 5th DCA 2015), "digital penetration and sexual intercourse between an adult perpetrator and a child victim constitute unnatural and la......
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Knighton v. State, 4D13–4630.
...at 838.Since the Second District's holding in Harris, however, the Fifth District revisited the exact same issue in Funiciello v. State, 179 So.3d 388 (Fla. 5th DCA 2015). There, the court held that a defendant charged with lewd or lascivious battery is entitled to an instruction on the les......
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Kelley v. State
...an adult and child constitutes an unnatural and lascivious act" sufficient to warrant the lesser included); Funiciello v. State, 179 So.3d 388, 389 (Fla. 5th DCA 2015). Thus, the trial court erred by not instructing the jury because Appellant requested the instruction, the Information alleg......