Palmer v. State

• Decision Date: 31 December 2002
• Docket Number: No. 1D00-4209.,1D00-4209.
• Citation: 838 So.2d 579
• Parties: Billy Joe PALMER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

838 So.2d 579

Billy Joe PALMER, Appellant, v. STATE of Florida, Appellee.

No. 1D00-4209.

District Court of Appeal of Florida, First District.

December 31, 2002.

Rehearing Denied March 5, 2003.

Nancy A. Daniels, Public Defender and Leonard Holton, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Elizabeth Fletcher Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant seeks review of his conviction for a lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (1997). The information alleges two alternative theories regarding the appellant's actions, one of which constitutes the crime of sexual battery. The general verdict of guilt entered by the jury does not differentiate between the two theories. This court has previously held, "one cannot be convicted of a lewd and lascivious act upon a child under 12 years of age for conduct that ... constitutes the crime of sexual battery ...." Jozens v. State, 649 So.2d 322, 323 (Fla. 1st DCA 1995); see also Beck v. State, 732 So.2d 427 (Fla. 1st DCA 1999)

. The majority's construction of the statute in Jozens is, in our view, questionable, and moreover, appears to contravene the legislative intent as construed by State v. Hightower, 509 So.2d 1078 (Fla.1987). Nevertheless, because the holding in Jozens remains intact, we are constrained to follow that case. The Legislature has now extensively amended section 800.04, and it does not appear that the result this court reached in Jozens could be repeated. See Ch. 99-201, § 6, Laws of Fla. Because the defendant in this case may have been convicted on a theory that is incorrect as a matter of law, we must reverse and remand for a new trial.

KAHN and PADOVANO, JJ., concur.

POLSTON, J., dissents with opinion.

POLSTON, J., dissents with opinion.

Appellant Billy Joe Palmer was charged and convicted of a lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (1997). Appellant was the victim's little league baseball coach. The information charged that:

BILLY JOE PALMER, between and including the dates of March 1, 1998, and November 1, 1998, in the County and State aforesaid, did unlawfully handle, fondle or make an assault upon a child under the age of sixteen (16) years, to-wit: [ ], age 9, in a lewd and lascivious manner, by oral and/or digital manipulation of the penis of [ ] and by penile penetration of the anus of [ ], in violation of Section 800.04, Florida Statutes.

Appellant was not charged, tried, or convicted for sexual battery.

Appellant argues that he was charged with a nonexistent crime, therefore the trial court erred in denying his motion for judgment of acquittal. Appellant argues that some of the factual allegations against him, if true, would constitute the crime of sexual battery, and therefore cannot be charged as a lewd and lascivious act upon a child. Because Appellant was not charged with the crime of sexual battery, and the Florida Legislature intended that lewd and lascivious acts should include acts that would constitute sexual battery, I disagree with Appellant and would affirm.

I.

Section 800.04, Florida Statutes (1997) states:

Lewd, lascivious, or indecent assault or act upon or in presence of child.—A person who:

(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;

(2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act;

(3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or

(4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years,

without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section. A mother's breastfeeding of her baby does not under any circumstances violate this section. (Emphasis added).

In 1984, the Florida Legislature added what is currently section 800.04(3), and revised the language in the latter part of section 800.04 as follows: "without committing the crime of the intent to commit¹ sexual battery...." Ch. 84-86, § 5, at 264-65, Laws of Fla. In making these changes, the Legislature stated its intent in the preamble to chapter 84-86: "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 of the victim's prior chastity." Ch. 84-86 at 261, Laws of Fla. (emphasis added). Appellant argues that because he is accused of committing acts that may be defined as sexual battery, he cannot be guilty of lewd and lascivious acts. This is contrary to the Legislature's intent—it specifically said that lewd and lascivious acts upon children include acts defined as sexual battery.²

In 1990, the Florida Legislature added Section 800.04(2), to prohibit, inter alia, actual sexual intercourse with a child under the age of 16. Ch. 90-120, § 1, at 404, Laws of Fla. Appellant's argument that the factual allegations constituting sexual battery cannot be charged as a lewd and lascivious act upon a child is contrary to the purpose of chapter 84-86³ and to the plain language of the statute.

Moreover, if the statute were interpreted as Appellant suggests, the reference in section 800.04(2) to actual sexual intercourse as a lewd and lascivious act would be rendered meaningless. See United Specialties of America v. Department of Revenue, 786 So.2d 1210, 1213 (Fla. 5th DCA 2001)

(stating that "a fundamental rule of statutory interpretation is that the courts should avoid a construction that would render part of a statute meaningless. Whenever possible, courts should give effect to all statutory provisions and construe them in harmony with one another. This impl[e]ments the general rule of statutory construction that the Legislature does not intend to enact purposeless and therefore useless legislation.").

II.

In State v. Hightower, 509 So.2d 1078 (Fla.1987), the Court explained that chapter 84-86 was "passed to eliminate the anomalous interpretation that one could commit the conduct defined as sexual battery upon a person between the ages of twelve and sixteen and yet remain unpunished because of circumstances which would prevent conviction of the crime of sexual battery." 509 So.2d at 1079. Although the discussion in Hightower had to do with the victim's age, the principle of law is applicable to this case.

Appellant is not charged with a separate count of sexual battery. I cannot rule that Appellant has committed the crime of sexual battery when he has not even been charged with the crime. See State v. Bloom, 497 So.2d 2, 3 (Fla.1986)

(ruling that under Florida's Constitution, "the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute"). Accordingly, the phrase "without committing the crime of sexual battery" within section 800.04 is not applicable to this case.

Appellant argues that he could commit the conduct defined as sexual battery and yet remain unpunished because he was not charged with the crime of sexual battery. Because the Legislature specifically intended for that not to occur, Hightower, 509 So.2d at 1079, I reject Appellant's argument. See State v. Anderson, 764 So.2d 848 (Fla. 3d DCA 2000) (ruling that the "cardinal rule of statutory...