Hightower v. State, 85-453
| Citation | 11 Fla. L. Weekly 975,488 So.2d 106 |
| Decision Date | 24 April 1986 |
| Docket Number | No. 85-453,85-453 |
| Parties | 11 Fla. L. Weekly 975 James Horace HIGHTOWER, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Pursuant to the appellant's motion for rehearing in accordance with Florida Rule of Appellate Procedure 9.331(c), we have considered this case en banc. We vacate our prior per curiam panel decision filed herein on January 2, 1986, and substitute therefor the following opinion:
In this case the defendant, Hightower, was indicted for sexual battery of a child of six pursuant to section 794.011(2), Florida Statutes (1983). 1 At trial the defendant specifically objected to an instruction and verdict form on lewd and lascivious conduct pursuant to section 800.04, Florida Statutes (1983), 2 as a lesser included offense. The defendant pointed out that lewd and lascivious conduct was not listed in the Schedule of Lesser Included Offenses, Florida Standard Jury Instructions in Criminal Cases (1981 ed.), as either a category one (necessary) or category two (permissive) lesser offense of sexual battery under section 794.011(2). Case law is abundantly clear that lewd and lascivious conduct in section 800.04, as the statute read prior to its amendment in 1984, 3 was not a necessarily lesser included offense of sexual battery (formerly rape) committed against a child of eleven or younger. See Ray v. State, 403 So.2d 956 (Fla.1981); State v. Sumner, 157 Fla. 371, 26 So.2d 336 (1946); Walker v. State, 464 So.2d 1325 (Fla. 5th DCA 1985); Harrielson v. State, 441 So.2d 691 (Fla. 5th DCA 1983). Nevertheless, the trial court instructed on section 800.04 and, as fate would have it, the jury convicted of that offense.
On appeal, Hightower contends he cannot be convicted of an offense with which he was not charged. The state argues that the legislature intended lewd and lascivious conduct to be a necessarily lesser included offense of sexual battery, as shown by the amendment to section 800.04 in 1984, which was prompted by the opinion of the Third District Court of Appeal in Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1983). The preamble to that amendment, Chapter 84-86, Laws of Florida, provides:
WHEREAS, the District Court of Appeal, Third District, held in the case of Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1983) that the statute prohibiting lewd and lascivious conduct with children under the age of 14 years did not prohibit acts of sexual intercourse between an adult and an unchaste, consenting child, and
WHEREAS, the District Court of Appeal additionally took the view that, where the victim is younger than 14 years of age but not younger than 12 years of age, the victim's consent was a defense to the crime of lewd and lascivious handling, fondling, or assault of a child, and
WHEREAS, the intent of the Legislature was and remains to prohibit lewd and lascivious acts upon children, including sexual intercourse and other acts defined as sexual battery, without regard either to the victim's consent or the victim's prior chastity, ...
The Lanier case was reviewed by the Florida Supreme Court, via a certified question, in State v. Lanier, 464 So.2d 1192 (Fla.1985). Therein, the Florida Supreme Court held that a defendant charged with unlawfully handling, fondling or assaulting a twelve-year-old girl by "engaging in sexual intercourse" could be convicted of violating section 800.04, Florida Statutes (1981), even where the facts reveal lack of chastity and consent. The 1981 statute and the 1983 statute are the same. The court said:
We must apply section 800.04 as it existed at the time the allegedly lewd and lascivious acts occurred, prior to the enactment of the amendment. Further, we are not bound by statements of legislative intent uttered subsequent to either the enactment of a statute or the actions which allegedly violate the statute. However, we will show great deference to such statements, especially in a case such as this, when the enactment of an amendment to a statute is passed merely to clarify existing law. Cf. Williams v. Hartford Accident & Indemnity Co., 382 So.2d 1216, 1220 (Fla.1980). (An amendment to a statute clarifying the scope of underinsured motorist insurance coverage did not alter the scope of such coverage as it existed prior to the enactment of the amendment because the amendment merely served to clarify the extent of coverage as it previously existed.)
Therefore, we hold that section 800.04 both prior to and subsequent to the 1984 amendment is violated when a male engages in sexual intercourse with a twelve-year-old girl despite the fact that the victim was previously unchaste and the sexual intercourse was consensual.
The Lanier opinion deals with consensual intercourse with an unchaste twelve-year-old, and holds that such intercourse--which was not a sexual battery under extant statutes--could constitute lewd handling or fondling under section 800.04, even before the 1984 amendment. But the fallacy of the state's argument in the instant case is that such intercourse with a child under twelve would constitute sexual battery--and, therefore, by definition, could not be lewd and lascivious conduct under section 800.04. The Lanier opinion does not recede from Ray or Sumner.
For the foregoing reasons, it is clear that the state's argument in regard to a necessarily lesser included offense must fail. Nor can the state sustain the conviction as one for a "permissive lesser offense." That concept is an aberration of law peculiar to the State of Florida which has caused enormous confusion 4 and was incepted by an analysis of lesser offenses and jury instructions in Brown v. State, 206 So.2d 377 (Fla.1968). In an opinion by Justice Thornal, the court undertook to define applicable rules for the guidance of Florida courts in respect to lesser included offenses. The court first noted that, pursuant to statutory law, crimes were divisible into four categories or situations with distinguishing characteristics:
(1) Crimes divisible into degrees.
(2) Attempts to commit offenses.
(3) Offenses necessarily included in the offense charged.
(4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. (Emphasis in original.)
After discussing the first three categories, the opinion then analyzed "offenses which may be included," the fourth category:
(4) OFFENSES WHICH MAY BE INCLUDED. Section 919.16, makes provision for offenses which are necessarily included in the offense charged. It is applicable to that group of offenses which includes lesser offenses as essential elements. This suggests a further type of "lesser included" situation.[ 5 This fourth category comprehends those offenses which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial. In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense. If the allegata and probata are present then there should be a charge on the lesser offense.
For example, if a person were charged with "assault with intent to commit robbery", it could not be held as a matter of law (under category (3) above) that "aggravated assault" was a necessarily included lesser offense, although simple assault obviously would be. On the other hand, if the information charged "assault with a deadly weapon with intent to commit robbery", then "aggravated assault"--assault with a deadly weapon--would be a lesser included offense. An instruction should then be given if use of a deadly weapon was established by the proof. If such proof were lacking, the "aggravated assault" instruction should not be given, although the case could still go to the jury on the main charge of "assault with intent to commit robbery".
Here, we note the distinction between category (3) and category (4). In the former the lesser offense is an essential ingredient of the major crime charged. In the latter, it may or may not be depending upon the particular allegations of the accusatory pleading and the proofs tendered in support thereof. (Emphasis in original.)
Utilizing the Brown category four analysis, we look first to the accusatory pleading. The indictment in this case charged that Hightower committed sexual battery "by penetrating or having union with the vagina of [victim] or by injuring the sexual organ of [victim] with his sexual organ, in an attempt to penetrate or have union with the vagina of [victim]." Pursuant to Ray and Sumner, that language does not include the statutory elements of an offense under section 800.04. Therefore, it cannot be a permissive lesser included offense, and, indeed, the state's appellate brief does not contend that it is. For that matter, it is arguable that the amendment in 1983 of section 775.021(4), Florida Statutes, 6 which recognizes the Blockburger 7 test, has legislatively abolished the artificial and confusing concept of permissive lesser included offenses. See the concurring opinion of Justice Shaw in Green v. State, 475 So.2d 235 (Fla.1985). In Green, Justice Shaw wrote:
Under section 775.021(4) offenses are either separate or lesser included, based on the statutory elements. There can be no so-called permissive lesser included offenses based on the accusatory pleadings or proof adduced at trial. (Footnote omitted.) (Emphasis in original.)
Id....
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