Hicks v. State, 77-1117
| Citation | 362 So.2d 730 |
| Decision Date | 02 October 1978 |
| Docket Number | No. 77-1117,77-1117 |
| Parties | Odell Aaron HICKS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., for appellee.
Before HAVERFIELD, C. J., * and PEARSON and KEHOE, JJ.
On June 19, 1978, by order of this court, we granted appellant's and appellee's petitions for a rehearing in regard to our previous opinion in this cause filed May 16, 1978. Upon re-argument of the cause, we now withdraw our opinion in Hicks v. State, Case No. 77-1117 (Fla. 3d DCA, opinion filed May 16, 1978), and enter the following opinion:
Appellant, Odell Aaron Hicks, was found guilty by a jury of " . . . Involuntary Sexual Battery, threatening to use actual physical force likely to cause serious personal injury," and was sentenced to thirty years imprisonment. This appeal is from the judgment and sentence.
Appellant's first point questions the correctness of the trial court's order finding him competent to stand trial. Our review of this record convinces us that the evidence fully supports the trial judge's decision. See Julious v. State, 271 So.2d 807 (Fla. 3d DCA 1973). See also Brown v. State, 245 So.2d 68 (Fla.1971).
The second point presented urges error upon the court's denial of appellant's motion for a mistrial because a witness made a reference to the possibility that there was another victim. This revelation occurred upon appellant's cross-examination of the victim and the record clearly shows that the answer could have been anticipated by the defendant and was, in fact, invited by him. Cf. Sullivan v. State, 303 So.2d 632 (Fla.1974). Further, the trial court recognized the impropriety of the answer and tendered a curative instruction which the appellant refused. We hold that the trial court properly denied the motion for mistrial.
Appellant's third point urges error upon an order of the trial court denying his motion to reduce the charge against him to involuntary sexual battery with the use of force not likely to cause serious bodily injury. This point requires a review of the evidence to determine whether there was sufficient evidence to go to the jury upon the charge of involuntary sexual battery with the use of force likely to cause serious bodily injury (the crime with which defendant was charged). The victim, a sick fifty-year-old woman, was first hit from behind to cause her to fall to her knees. She tried to run, but when she failed to escape, appellant said, "Now, I'm really going to beat you up." There was also evidence that she was hit again and suffered a split lip. We hold that the evidence was sufficient to present a jury question of whether the force used was likely to cause serious bodily injury. See Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975); and Brown v. State, 294 So.2d 128 (Fla. 3d DCA 1974).
Appellant's fourth point urges that the trial court committed reversible error when it denied his request for an instruction on the lesser included offense of assault. In light of the Supreme Court of Florida's recent decision in State v. Abreau, 363 So.2d 1063 (Fla. 1978), we hold that the point is without merit.
Appellant for his fifth point on appeal contends that he was convicted of an offense not charged in the information. The information charged in this case charges appellant with an involuntary sexual battery as proscribed by Section 794.011(3), Florida Statutes (1975), which provides that:
"A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony."
The information filed in this case reads in part as follows:
" . . . Odell Aaron Hicks . . . did unlawfully and feloniously commit sexual battery upon (victim's name omitted), a person over the age of eleven (11) years, by inserting his penis into her vagina without her consent, and in the process thereof Used actual physical force likely to cause serious personal injury . . . " (Emphasis added.)
Appellee requested that the trial court instruct the jury upon sexual battery pursuant to Section 794.011(4)(b), Florida Statutes (1975), which provides that:
The trial court gave this requested instruction over the objection of appellant.
Subsequently, the jury returned a verdict finding appellant guilty as follows:
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State v. Baldwin
...legislative expression that the phrase "by force and against her will" includes both threatened and applied force. In Hicks v. State, 362 So.2d 730 (Fla.App.1978), the defendant was charged with sexual battery by use of physical force, but was convicted upon a jury instruction and verdict b......
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Jones v. State, 84-2024
...the defendant on the improper offense, the error is considered to be reversible and a new trial is required. See Hicks v. State, 362 So.2d 730, 732-33 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979); Tamayo v. State, 237 So.2d 251, 253 (Fla. 3d DCA 1970); accord State v. Barnes, ......
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McIlwain v. State
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Gillespie v. State, AK-364
...had been convicted of that crime, the conviction could not have been for a crime not charged in the information. Cf. Hicks v. State, 362 So.2d 730 (Fla. 3d DCA 1978); Smith v. State, 365 So.2d 405 (Fla. 3d DCA I otherwise agree with the majority that none of the remaining points raised on a......