Raford v. State
| Decision Date | 26 September 2002 |
| Docket Number | No. SC01-379.,SC01-379. |
| Citation | 828 So.2d 1012 |
| Parties | Willie RAFORD, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Carey Haughwout, Public Defender, and Steven H. Malone, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
Robert A. Butterworth, Attorney General, Celia Terenzio, Assistant Attorney General, Bureau Chief, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, FL, for Respondent.
We have for review the opinion in Raford v. State, 792 So.2d 476 (Fla. 4th DCA 2001), which certified conflict with Wilson v. State, 744 So.2d 1237 (Fla. 1st DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we approve the Fourth District's decision affirming Raford's conviction for child abuse and rejecting his claim of parental privilege and immunity as to the abuse charged and tried.
Petitioner, Willie Raford, was charged with committing aggravated child abuse on his girlfriend's eight-year-old child by repeatedly striking the child with a belt. Section 827.03(2), Florida Statutes (1997), provides:
§ 827.03(2), Fla. Stat. (1997).1 At the jury instruction conference during Raford's trial, the trial court decided, over defense counsel's objection, to instruct the jury on the lesser included offense of child abuse, a third-degree felony.2
During jury deliberations, the trial court realized that it had mistakenly instructed the jury on second-degree aggravated child abuse found in section 827.03(2)(c), rather than the lesser included felony child abuse the court intended to address.3 After discussion with defense counsel and the State, the trial court proposed a solution to the error by offering to sentence petitioner as if he had been convicted of the intended lesser included offense of child abuse, a third-degree felony, if the jury should return a verdict finding him guilty of the second-degree felony actually instructed upon. Defense counsel responded to the offer by asserting, "I would have a hard time saying I was prejudiced by that one." The jury subsequently did find petitioner guilty of the lesser included second-degree felony charged upon, and the trial court, as it had earlier agreed, then adjudicated and sentenced petitioner for the lesser included offense of third-degree felony child abuse.
On appeal, the Fourth District rejected Raford's contention that the trial court erred in giving a lesser included instruction because there were no lesser included offenses that applied to the charge of aggravated child abuse brought against him, as well as his related argument that his conviction should be set aside because he had a common-law parental privilege to discipline the child as he did. See Raford, 792 So.2d at 479-80
. The district court acknowledged that its decision conflicted with Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987), and Wilson v. State, 744 So.2d 1237 (Fla. 1st DCA 1999), wherein the First District held that there are no lesser included offenses that apply to a parent, or one acting as such, charged with aggravated child abuse.
In its opinion, the court explained that Raford's argument and the Wilson decision overlooked the fact that shortly after Kama was decided the Legislature amended the statutory scheme for third-degree felony and misdemeanor child abuse, as defined in section 827.04, and clearly provided for lesser included offenses. See id. The district court interpreted the legislative changes as eliminating the parental privilege recognized in Kama under the pre 1988 statutes, except for simple battery, e.g., a typical spanking or other nonconsensual contact. See id. at 480. The district court also found the trial court's erroneous instructions to the jury to have been harmless under the circumstances presented. The court certified conflict with Wilson.4 Id.
Under the conflict of decisions certified, at issue is whether a parent or person standing in loco parentis may be convicted of the lesser offense of felony child abuse pursuant to section 827.03(1), Florida Statutes.5
In Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987), Kama was convicted of aggravated child abuse in violation of section 827.03(1)(c), Florida Statutes (1985), for his conduct in disciplining his ten-year-old son. On appeal, Kama argued that the trial court erred in not giving requested jury instructions on the lesser included offenses of misdemeanor child abuse and simple battery. In rejecting Kama's claim, the First District acknowledged the "well established principle that a parent, or one acting in loco parentis, does not commit a crime by inflicting corporal punishment on a child subject to his authority, if he remains within the legal limits of the exercise of that authority." Id. at 156.6 However, the court concluded that under the then existing statutory scheme, the Legislature intended that "reasonable discipline of children be privileged, but that when the person in authority over a child inflicts punishment greater than that which he is privileged to inflict, he commits a serious offense, aggravated child abuse, not merely a misdemeanor nonconsensual touching." Id. at 157-58. The court explained:
It is because the law permits, by privilege, a simple battery in the administration of discipline by one in authority over a child that the offense of aggravated child abuse must be so defined. Appellant's contention is that there must be some offense less serious than a second degree felony for a battery which exceeds the legal limits of a parent's disciplinary authority. The legislature has not so provided, and such an unconstitutionally ambiguous standard would not provide the means for judging the acceptable boundaries of disciplinary conduct. The offense of battery covers a broad range of conduct, from an intentional "unconsented to" touching, to the intentional infliction of bodily harm.
Id. at 158. The court concluded that the trial court had properly ruled that a simple battery was not a lesser included offense of aggravated child abuse. Id. at 159.7
The First District similarly concluded that the trial court had properly determined that misdemeanor child abuse was also not a lesser included offense of aggravated child abuse under the prevailing facts. The court reasoned:
Section 827.04(2), is violated when a person allows a child to be deprived of necessary food, clothing, shelter, or medical treatment, or through culpable negligence permits physical or mental injury to a child. The uncontroverted evidence in this case is that appellant inflicted injury upon the child, not that he "permitted" injury to the child, as contemplated by section 827.04(2).
Id. Hence, the court indicated that the absence of language prohibiting "infliction" of injury to be critical to its analysis of the abuse statute.
Shortly after Kama was decided, the Legislature amended third-degree felony and misdemeanor child abuse, as defined in section 827.04, to provide:
Ch. 88-151, § 4, at 812, Laws of Fla. (additions are underlined). Thus, as amended, and unlike the situation in Kama, a person who "inflicted" the physical or mental injury to a child could be found guilty of misdemeanor child abuse under section 827.04(2). More recently, in 1996, the Legislature again amended chapter 827, and section 827.03 was rewritten to include three subsections pertaining to child abuse, aggravated child abuse, and neglect of a child, respectively. See ch. 96-322, § 8, at 1770-71, Laws of Fla. As amended, section 827.03 provided in pertinent part:
§ 827.03(1), Fla. Stat. (Supp.1996). Obviously, the statutory scheme has been significantly amended and expanded since Kama.
Notwithstanding the statutory amendments discussed above, petitioner maintains that the Fourth District erroneously concluded that a parent or one standing in loco parentis may be...
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