Insko v. State, No. SC06-1619.

• Court: United States State Supreme Court of Florida
• Writing for the Court: Cantero
• Citation: 969 So.2d 992
• Docket Number: No. SC06-1619.
• Decision Date: 20 September 2007
• Parties: Russell Owen INSKO, Petitioner, v. STATE of Florida, Respondent.

969 So.2d 992 Russell Owen INSKO, Petitioner,
v.
STATE of Florida, Respondent. No. SC06-1619. Supreme Court of Florida. September 20, 2007. Rehearing Denied November 26, 2007.

[969 So.2d 993]

James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public

[969 So.2d 994]

Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, and Susan D. Dunlevy, Assistant Attorneys General, Tampa, FL, for Respondent.

CANTERO, J.

We must decide whether, for purposes of a statute outlawing lewd or lascivious conduct, the defendant's age is an element of the crime or a potential sentencing enhancement. If age is an element of the crime, then it must be alleged in the indictment or information, proven at trial, and found by the jury. If it is a potential sentencing enhancement, then, after the jury's verdict on guilt, a judge may consider it in determining whether to enhance the sentence. The Second District Court of Appeal held that it was a potential sentencing enhancement, see Insko v. State, 933 So.2d 679 (Fla. 2d DCA 2006) (Insko II), but certified to us a question of great public importance. Id. at 682-83. We granted review to answer the question. See Insko v. State, 937 So.2d 122 (Fla. 2006). As we explain below, we hold that the age of the defendant is an element of the crime. Because we find that Insko waived the issue, however, we approve of the Second District's affirmance of the judgment in this case.

I. STATEMENT OF FACTS AND PROCEDURE

Insko was charged with lewd or lascivious conduct, in violation of section 800.04(6)(a)(2) and (b), Florida Statutes (2001). Under this provision, a person age eighteen or older who solicits a person under age sixteen to commit a lewd or lascivious act commits a second-degree felony punishable by up to fifteen years' imprisonment. The jury was instructed that the State had to prove two elements beyond a reasonable doubt: that the victim was under age sixteen and that Insko solicited the victim to commit a lewd or lascivious act. The court also instructed the jury as follows:

The punishment provided by law for the crime of lewd or lascivious conduct is greater depending on the age of the defendant. Therefore, if you find the defendant is guilty of lewd or lascivious conduct, you must determine by your verdict whether at the time of the offense: (a) the defendant was eighteen years of age or older; (b) the defendant was under the age of eighteen years.

The verdict form provided four alternatives: (1) guilty of Lewd or Lascivious Conduct (Solicit) (defendant eighteen years of age or older) as charged, a second-degree felony; (2) guilty of Lewd or Lascivious Conduct (Solicit) (defendant under eighteen years of age), a third-degree felony; (3) assault, a lesser-included offense Insko requested; and (4) not guilty. The jury chose the second alternative (defendant under eighteen years of age), and the court sentenced Insko to five years in prison.

Insko appealed, arguing that he was entitled to a new trial because the trial court allowed prejudicial evidence of prior bad acts. Insko v. State, 884 So.2d 312, 313-14 (Fla. 2d DCA 2004) (Insko I). The district court agreed and reversed for a new trial. Id. On remand, double jeopardy principles prevented a retrial for the offense of which Insko had been acquitted — lewd or lascivious conduct by a defendant at least eighteen years old. Before the retrial, Insko filed a motion to dismiss. Presenting a birth certificate showing that he was thirty-three years old at the time of the offense, Insko argued he could not be retried for the offense of which he had been convicted — lewd or lascivious conduct

969 So.2d 995

by a defendant under eighteen. The trial court concluded, however, that the age of the defendant was a potential sentencing enhancement, not an element of the crime, and therefore the fact that he was thirty-three years old did not prevent a retrial. Insko entered a plea to the third-degree offense, reserving the right to appeal the issue.

On appeal, the Second District followed "the determination made in Desbonnes[ v. State, 846 So.2d 565 (Fla. 4th DCA 2003)], which concludes that the age of the offender is not an element of the offense of lewd or lascivious conduct." Insko II, 933 So.2d at 682-83. The court certified the following question as one of great public importance: "In light of the ruling in Glover v. State, 863 So.2d 236 (Fla.2003), is the age of the offender an element of the offense of lewd or lascivious conduct under section 800.04(6), Florida Statutes?"

Below, we first consider the certified question. We then address Insko's claim of entitlement to a discharge.

II. ELEMENT OR SENTENCING FACTOR?

In this case, we consider whether the age of the defendant is an element of the crime of lewd or lascivious conduct or a sentencing factor. In criminal law, whether a fact constitutes an element of a crime carries constitutional implications. Historically, the "elements of a crime" are the facts "`legally essential to the punishment to be inflicted.'" Harris v. United States, 536 U.S. 545, 561, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (quoting United States v. Reese, 92 U.S. 214, 232, 23 L.Ed. 563 (1876) (Clifford, J., dissenting)). Thus, to apprise the accused of the specific charges against him, an information or indictment must contain all facts essential to the "offence intended to be punished." United States v. Carll, 105 U.S. 611, 612-13, 26 L.Ed. 1135 (1881) (noting that the indictment should "set forth all the elements necessary to constitute the offence intended to be punished"); State v. Dye, 346 So.2d 538, 541 (Fla.1977) ("An information must allege each of the essential elements of a crime to be valid."); Fla. R.Crim. P. 3.140(d)(1) ("Each count of an indictment or information on which the defendant is to be tried shall allege the essential facts constituting the offense charged."); see also Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (stating that although the language of a statute may be sufficient to generally describe an offense, the indictment must contain the facts and circumstances of the specific offense charged). Further, the "Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Of course, the legislature has full authority to define the elements of a crime. See State v. Giorgetti, 868 So.2d 512, 516 (Fla.2004). In doing so, however, it "must still `act within any applicable constitutional constraints in defining criminal offenses.'" Id. (quoting Liparota v. United States, 471 U.S. 419, 424 n. 6, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985)). Thus, for example, the legislature may not evade these constitutional requirements by redefining elements and denominating them as "factors that bear solely on the extent of punishment." Mullaney v. Wilbur, 421 U.S. 684, 697-98, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (noting that the criminal law is "concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability" and finding unconstitutional Maine's requirement that

969 So.2d 996

the defendant prove that a killing occurred in the heat of passion).

The issue of whether a particular fact is an element of the crime or a sentencing factor has been rendered somewhat academic after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Before that case, as stated above, if a fact was an element of the crime, it had to be submitted to the jury and proven beyond a reasonable doubt. If it was a sentencing factor, however, a judge could determine the fact at sentencing. In Apprendi, the Court noted that "[a]ny possible distinction between an `element' of a felony offense and a `sentencing factor' was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation's founding." Apprendi, 530 U.S. at 478, 120 S.Ct. 2348 (footnote omitted). Based on American jurisprudence, the Court stated that "[t]he judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury," meaning that "facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition `elements' of a separate legal offense." Id. at 483 n. 10, 120 S.Ct. 2348. Rejecting New Jersey's argument that the finding under the statute in that case was a sentencing factor, the Court stated that the legislature's placement of the provision in its sentencing provisions was not determinative and noted that the effect of the "enhancement" was "to turn a second-degree offense into a first degree offense, under the State's own criminal code." Id. at 494, 120 S.Ct. 2348. Accordingly, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348 (citing Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). Regarding facts that form the basis for sentencing a defendant, the Court warned that "when the term `sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." Id. at 494 n. 19, 120 S.Ct. 2348. As a plurality of the Court later explained, "Read together, McMillan[v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)] and Apprendi mean that those facts setting the outer limits of a sentence, and of the...