Holmes v. State, 2D02-356.
| Decision Date | 14 March 2003 |
| Docket Number | No. 2D02-356.,2D02-356. |
| Parties | David HOLMES, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
David Holmes, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Respondent.
David Holmes, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises several grounds alleging ineffective assistance of appellate counsel. We deny without discussion all of the grounds but one. On the remaining ground, because it is clear that the trial court's erroneous jury instruction, when viewed in context with the prosecutor's closing argument, constituted fundamental error that would have required reversal had it been raised as an issue on appeal,1 we vacate the judgment and sentence on one of the offenses of which Holmes was convicted, and we remand for a new trial on that count. See Johnson v. Wainwright, 498 So.2d 938 (Fla.1986)
().
Holmes was convicted after jury trial of two counts of attempted sexual battery upon a child less than twelve years of age and one count of committing a lewd and lascivious act in the presence of a child less than sixteen years of age. In one of the attempted capital sexual battery counts, the State alleged in the information that Holmes "did unlawfully attempt to commit a sexual battery upon D.H .... by attempting to penetrate the vagina of D.H. with his hand and/or finger." Holmes argues that the trial court committed fundamental error in instructing the jury that he could be found guilty of attempted capital sexual battery if the State proved that Holmes committed an "act upon D.H. in which the hand/or finger of DAVID W. HOLMES attempted to penetrate or attempted to have union2 with the vagina of D.H." (Emphasis added.) Holmes further argues that appellate counsel was ineffective in failing to raise this issue on appeal. We agree.
Sexual battery is defined as "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." § 794.011(1)(h), Fla. Stat. (1995). "[A] defendant's finger is an `other object,' which must penetrate and not merely have union with the relevant part." Richards v. State, 738 So.2d 415, 418 (Fla. 2d DCA 1999). In the present case, the above instruction was completely erroneous since attempted union of the finger or hand with the vagina does not constitute the crime of attempted capital sexual battery. In Palazzolo v. State, 754 So.2d 731, 737 (Fla. 2d DCA 2000), the trial court instructed the jury that "capital sexual battery was proven if the State established that `the finger of the defendant penetrated or had union with the vagina of the victim.'"...
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