Peters v. State, 2D03-2630.
| Decision Date | 12 December 2003 |
| Docket Number | No. 2D03-2630.,2D03-2630. |
| Parties | Japheth Samuel PETERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Japheth Peters challenges the order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Peters presented a facially sufficient claim that his plea was involuntarily entered because it was entered in reliance on the misadvice of counsel, and the attachments to the trial court's order do not conclusively refute Peters' claim. We reverse and remand for further proceedings.
Peters was charged by information with capital sexual battery. The State alleged that between January 31, 2000, and February 7, 2000, Peters digitally penetrated the victim's vagina. Peters entered a negotiated plea to the lesser included offense of attempted capital sexual battery in exchange for ten years' imprisonment followed by twelve years' probation. The guidelines sentencing range was 78 months to 30 years in prison. In his motion, Peters claimed that his plea was involuntary because it was engendered by the erroneous advice of counsel that there was no viable defense to the charge and that, if he went to trial, he would be found guilty and receive a sentence in the range of thirty years' imprisonment1 to life imprisonment. In support of this claim, Peters alleged that there was no evidence that he digitally penetrated the victim's vagina and that digital union with the vagina is not sufficient to establish the offense of capital sexual battery. He further alleged that trial counsel erroneously informed him that digital union with the vagina constitutes the offense of attempted capital sexual battery.2 Peters alleged that, but for counsel's misadvise, he would not have pleaded to the offense of attempted capital sexual battery but would instead have proceeded to trial. Peters has presented a facially sufficient claim that his plea was involuntarily entered based on the misadvise of counsel. See Rankin v. State, No. 2D01-3990, 861 So.2d 1222, 2003 WL 22927249 (Fla. 2d DCA Dec.12, 2003)
().
The trial court denied the claim finding that even though "the victim's statement wavered, evidence existed to support the elements of capital sexual battery." The trial court's reasoning is erroneous. Although the victim's statement indicated that Peters may have committed the offense of capital sexual battery, Peters claimed that his plea was involuntarily entered because counsel erroneously advised him, among other things, that there was no viable defense to the charges of capital sexual battery/attempted capital sexual battery and that he therefore should accept the State's offer to plead to attempted capital sexual battery. The attachments to the trial court's order show that there was a viable defense to the offenses of capital sexual battery and attempted capital sexual battery.
Under our current statute, sexual battery can occur when the defendant's mouth has `union' with the victim's `sexual organ,' but the defendant's finger must actually `penetrate' the vagina. If the defendant's finger does not penetrate the vagina, but only touches the vulva, the crime would appear to be a lewd and lascivious act.
Richards v. State, 738 So.2d 415, 416 (Fla. 2d DCA 1999).3 The Richards court held that "penetration requires some entry into the relevant part, however slight." 738 So.2d at 418. The Richards court stated that, even if it were to concede that two definitions of vagina existed, it was "constrained to use the narrower, [Webster's New World College Dictionary ] definition of vagina." 738 So.2d at 419. Id. In the present case, the attachments to the trial court's order contained sworn statements that both Peters and the victim gave to the police. The victim gave the following statements:
Peters, in his statement to the police, admitted that he "opened [the victim] up" and rubbed her clitoris. He also stated:
At best, the victim equivocated on whether Peters' fingers went inside her "private part." She certainly did not indicate that Peters' finger or fingers penetrated her vagina, i.e., the canal between her vulva and her uterus. Webster's New World College Dictionary defines clitoris as "a small sensitive erectile organ at the upper end of the vulva." See Webster's New World College Dictionary, 262 (3d ed.1996). If Peters' illegal act was confined to opening the labia majora4 of the victim and rubbing her clitoris,5 then he did not commit the offense of capital sexual battery, but rather he committed a lewd and lascivious act. Thus, it would appear, from the attachments to the trial court's order, that there was a viable defense to the charge of capital sexual battery.
"To establish an attempt to commit a specific crime, the State must prove a specific intent to commit that crime and an overt act toward the commission of the crime." Neal v. State, 854 So.2d 666, 670 (Fla. 2d DCA 2003)....
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