State v. Hightower, No. 68717

CourtUnited States State Supreme Court of Florida
Writing for the CourtGRIMES; McDONALD; SHAW; SHAW
Citation12 Fla. L. Weekly 424,509 So.2d 1078
Decision Date02 April 1987
Docket NumberNo. 68717
Parties12 Fla. L. Weekly 424 STATE of Florida, Petitioner, v. James HIGHTOWER, Respondent.

Page 1078

509 So.2d 1078
12 Fla. L. Weekly 424
STATE of Florida, Petitioner,
v.
James HIGHTOWER, Respondent.
No. 68717.
Supreme Court of Florida.
April 2, 1987.
Rehearing Denied July 16, 1987.

Robert A. Butterworth, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for petitioner.

James B. Gibson, Public Defender, Seventh Judicial Circuit, and Nancye R. Crouch, Asst. Public Defender, Daytona Beach, for respondent.

GRIMES, Justice.

We accepted jurisdiction of this case because of apparent conflict with State v. Lanier, 464 So.2d 1192 (Fla.1985). Art. V, § 3(b)(3), Fla. Const.

The defendant was charged with sexual battery of a six-year-old child, pursuant to section 794.011(2), Florida Statutes (1983). Over the defendant's objection the court instructed the jury that lewd and lascivious conduct as set forth in section 800.04, Florida Statutes (1983), was a lesser included offense. 1 The jury found the defendant guilty of lewd and lascivious conduct. In a split decision en banc the Fifth District Court of Appeal reversed on the premise that the defendant had been convicted of a crime with which he had not been charged. Hightower v. State, 488 So.2d 106 (Fla. 5th DCA 1986). The district court of appeal grounded its ruling on Ray v. State, 403 So.2d 956 (Fla.1981), in which this Court held that lewd and lascivious conduct was not a necessarily lesser included offense of sexual battery. 2 Accord Walker v. State, 464 So.2d 1325 (Fla. 5th DCA 1985); Harrielson v. State, 441 So.2d 691 (Fla. 5th DCA 1983). The state argues, however, that the decision below conflicts with this Court's later opinion in State v. Lanier.

In Lanier the defendant was charged under section 800.04 with handling, fondling, or making assault upon a twelve-year-old child by engaging in sexual intercourse, without intent to commit sexual battery. It was undisputed that the child was previously unchaste and that the sexual intercourse was consensual. In reversing the defendant's conviction, the Third District Court of Appeal held that he could not be prosecuted under section 800.04. Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1983). The court reasoned that there

Page 1079

was no assault because there was consent and that sexual intercourse did not constitute handling and fondling. The case was certified to the Supreme Court as passing upon a question of great public importance.

In the meantime, in response to the district court of appeal decision in Lanier, the legislature enacted chapter 84-86, Laws of Florida, to amend section 800.04. 3 The preamble to that chapter read in part:

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 the victim's prior chastity....

This Court in Lanier relied in large part upon the foregoing legislative statement of intent in reversing the decision of the Third District Court of Appeal. We held that section 800.04 both prior to and subsequent to the 1984 amendment is violated when a male engages in sexual intercourse with a twelve-year-old girl even though the victim was previously unchaste and the sexual intercourse was consensual. The question now before us is whether in Lanier this Court implicitly overruled its decision in Ray. We think not.

The 1984 amendment to section 800.04 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. Subsection (2) of section 800.04 as amended in 1984 utilized the sexual battery definition contained in section 794.011(1)(h). Therefore, it is evident that the phrase "without committing the crime of sexual battery" was included to differentiate between crimes of sexual battery and lewd and lascivious conduct. Had the phrase been excluded, a person having forcible sexual intercourse with a child under sixteen would be guilty of both crimes. As now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive. 4

The consensual intercourse with an unchaste twelve-year-old in Lanier did not constitute the crime of sexual battery. Therefore, the defendant could be convicted of lewd and lascivious conduct which was...

To continue reading

Request your trial
54 practice notes
  • Hunsicker v. State, No. 5D03-373
    • United States
    • Court of Appeal of Florida (US)
    • August 20, 2004
    ...decision in Morman, the court in Gisi explained the reason the courts employed this analysis: The Morman court cited State v. Hightower, 509 So.2d 1078 (Fla.1987), for the proposition that "[a]s now worded, section 800.04 contemplates that if sexual activity takes place with a person under ......
  • Welsh v. State, No. SC02-1092.
    • United States
    • United States State Supreme Court of Florida
    • June 12, 2003
    ...(1997). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude, based on this Court's opinion in State v. Hightower, 509 So.2d 1078 (Fla.1987), that lewd and lascivious conduct is not a permissive lesser included offense of capital sexual battery, and thus, the defendant was n......
  • Velazquez v. State, No. 93-1883
    • United States
    • Court of Appeal of Florida (US)
    • January 6, 1995
    ...Florida Statutes (1991), because section 800.04 is not a necessarily lesser-included offense of section 794.011(2). State v. Hightower, 509 So.2d 1078 (Fla.1987). Accordingly, we vacate Velazquez's two convictions for capital sexual battery. In all other respects, we affirm Velazquez's conv......
  • Roughton v. State, No. SC12–1719.
    • United States
    • United States State Supreme Court of Florida
    • February 25, 2016
    ...Smith, but would approve only the result, not the rationale, of Johnson and Robinson because those two cases cited to State v. Hightower, 509 So.2d 1078 (Fla.1987)12 — 185 So.3d 1214or cases which themselves cited Hightower —and that case involved the pre–1999 version of the lewd or lascivi......
  • Request a trial to view additional results
54 cases
  • Hunsicker v. State, No. 5D03-373
    • United States
    • Court of Appeal of Florida (US)
    • August 20, 2004
    ...decision in Morman, the court in Gisi explained the reason the courts employed this analysis: The Morman court cited State v. Hightower, 509 So.2d 1078 (Fla.1987), for the proposition that "[a]s now worded, section 800.04 contemplates that if sexual activity takes place with a person under ......
  • Welsh v. State, No. SC02-1092.
    • United States
    • United States State Supreme Court of Florida
    • June 12, 2003
    ...(1997). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude, based on this Court's opinion in State v. Hightower, 509 So.2d 1078 (Fla.1987), that lewd and lascivious conduct is not a permissive lesser included offense of capital sexual battery, and thus, the defendant was n......
  • Velazquez v. State, No. 93-1883
    • United States
    • Court of Appeal of Florida (US)
    • January 6, 1995
    ...Florida Statutes (1991), because section 800.04 is not a necessarily lesser-included offense of section 794.011(2). State v. Hightower, 509 So.2d 1078 (Fla.1987). Accordingly, we vacate Velazquez's two convictions for capital sexual battery. In all other respects, we affirm Velazquez's conv......
  • Roughton v. State, No. SC12–1719.
    • United States
    • United States State Supreme Court of Florida
    • February 25, 2016
    ...Smith, but would approve only the result, not the rationale, of Johnson and Robinson because those two cases cited to State v. Hightower, 509 So.2d 1078 (Fla.1987)12 — 185 So.3d 1214or cases which themselves cited Hightower —and that case involved the pre–1999 version of the lewd or lascivi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT