Ross v. State, 58-670

• Decision Date: 14 May 1959
• Docket Number: No. 58-670,58-670
• Citation: 112 So.2d 69
• Parties: Lynn Emory ROSS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 69

112 So.2d 69

Lynn Emory ROSS, Appellant, v. STATE of Florida, Appellee.

No. 58-670.

District Court of Appeal of Florida, Third District.

May 14, 1959.

Rehearing Denied June 4, 1959.

Frank T. Imand, Miami, for appellant.

Richard W. Ervin, Atty. Gen., and Irving B. Levenson, Asst. Atty. Gen., for appellee.

CARROLL, CHAS., Chief Judge.

Appellant was informed against and charged with the prescribed crime of assault in a lewd and lascivious manner on a girl under 14 years of age. ¹ The offense, covered by § 800.04, Fla.Stat., F.S.A., ² is included as an offense under the later enacted Child Molester Act, chapter 801, Fla.Stat., F.S.A. ³

Appellant was tried in the Criminal Court of Record of Dade County, without a jury, adjudged guilty and sentenced to be confined for the period of one year in the county jail. This appeal followed.

Counsel for appellant argued two points: first, that the evidence was insufficient to support the conviction, and second, that the court was in error in allowing the state to produce evidence of similar conduct toward another young girl on an earlier occasion.

On reviewing the evidence it is found to be sufficient to support the judgment. We refrain from needless recitation of the facts of this case, which concerned the 56 year old appellant and an 11 year old girl.

We hold against the contentions of appellant regarding the testimony of the other girl who at the time or times involved was 10 or 11 years old. Testimony of the latter to the effect that appellant had fondled her in a lewd and lascivious manner was presented by the state to show the character of the deed as to motive, intent and absence of mistake, for which it was relevant and admissible, under Talley v. State, 160 Fla. 593, 36 So.2d 201; and Williams v. State, Fla.1959, 110 So.2d 654.

As authorized under rule 6.16, Florida Appellate Rules, 31 F.S.A., we hold on the authority of Buchanan v. State, Fla.App.1959, 111 So.2d 51, that the sentence of confinement in the county jail was not a lawful sentence. The provision for sentence as contained in § 800.04, Fla.Stat., F.S.A., which authorized imprisonment in the state prison, or in the county jail, is superseded by the penalty provisions for such crime as provided for in the later enacted Child Molester Act (ch. 26843, Laws of Florida, 1951, as amended, now appearing as ch. 801, Fla.Stat., F.S.A.), under which, if imprisonment is ordered, it is directed to be served in the state prison at Raiford (§ 801.03(1)(a)). See Buchanan v. State, supra.

Accordingly, the judgment appealed from is affirmed; but the cause is remanded with directions that the sentence be revised to conform to the provisions therefor as set our in § 801.03, Fla.Stat., F.S.A. ⁴

Affirmed; and remanded with direction for resentencing.

HORTON and PEARSON, JJ., concur.

On Petition for Rehearing.

PER CURIAM.

In a petition for rehearing the appellant suggests that this court failed to consider the time element involved, in holding that evidence of a similar act was relevant and admissible. Appellant contends the record shows that such prior act was some two years before the offense charged in this case, which took place in May of 1958.

The point thus suggested by appellant was not overlooked. Our holding that the evidence of the prior act or offense was relevant included a determination of essential temporal propinquity. While the record may permit conclusion that the earlier occasion of fondling the other girl was as much as two years before the date of the offense involved here, counsel for the defendant on cross examining the girl established that the defendant engaged in such conduct with her on a continuing series of occasions, the last of which was said by her to have taken place as late as November of...