Glover v. State
| Decision Date | 05 April 2002 |
| Docket Number | No. 5D01-2462.,5D01-2462. |
| Citation | 815 So.2d 698 |
| Parties | Bruce GLOVER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Glover was convicted of capital sexual battery. There is no dispute that the information charged Glover under the provisions of section 794.011(2)(a), Florida Statutes, by alleging that the victim was under twelve and the defendant was over eighteen. There is also no dispute that the jury specifically found defendant to have been over eighteen at the time of the offense. The problem, according to appellant, is that the court failed to instruct the jury that the age of the defendant was an element of the offense of capital sexual battery.1 There appears to be a dispute among the courts on this issue. The Fourth District in Jesus v. State, 565 So.2d 1361 (Fla. 4th DCA 1990), held that the age of the defendant is only important in determining the punishment for the crime and is not itself an element of the offense. The Third District in Baker v. State, 604 So.2d 1239 (Fla. 3d DCA 1992), found the age of the defendant to be an element of capital sexual battery. This court held in D'Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999), that the age of the defendant is an essential element of capital sexual battery. Indeed, it seems that if the age of the victim (under twelve) is an element of the offense (and this is recognized by the Standard Jury Instruction on sexual battery of a victim under twelve which was given by the court in the instand case), then the age of the defendant, set out in the same section of the statute creating the offense, should also be.
But even though the court's instruction (the Standard Jury Instruction) appears to be in error by not listing the age of the defendant as an element of the offense, we find such error, if it exists, to be harmless under the facts of this case. The court instructed the jury:
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...fact that the offender is eighteen years of age or older. See Baker v. State, 604 So.2d 1239 (Fla. 3d DCA 1992); cf. Glover v. State, 815 So.2d 698 (Fla. 5th DCA 2002) (finding capital sexual battery instruction that failed to list defendant's age as element of offense was harmless error wh......
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