State v. Hogan, 63515

Decision Date07 June 1984
Docket NumberNo. 63515,63515
PartiesSTATE of Florida, Petitioner, v. Ronald HOGAN, Respondent.
CourtFlorida Supreme Court

Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for petitioner.

Channing E. Brackey, Fort Lauderdale, for respondent.

McDONALD, Justice.

We have for review Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983), because of conflict with Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

A two-count indictment charged Hogan with kidnapping and with violating subsection 794.011(2), Florida Statutes (1981), sexual battery of a person under eleven years of age by a person over eighteen years of age. The legislature has provided that such a crime is a capital offense, the penalty for which is death or a life sentence without eligibility for parole for twenty-five years. The jury convicted Hogan of kidnapping and attempted sexual battery. Subsection 777.04(4)(a), Florida Statutes (1981), states that a person convicted of an attempted capital offense shall be guilty of a first-degree felony. The trial court sentenced Hogan to thirty years' imprisonment pursuant to subsection 775.082(3)(b), Florida Statutes (1981). On appeal the district court ordered resentencing because,

[s]ince sexual battery is a life felony, rather than a capital felony, the crime of attempted sexual battery carries a maximum sentence of fifteen years. Sections 777.04(4)(b) and 775.082(3)(c), Florida Statutes (1981).

427 So.2d at 203. In reaching that conclusion the district court reasoned that, because this Court in Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982), ruled that death cannot be imposed for sexual battery of a child, the instant crime is no longer a capital crime.

In Rusaw v. State, 451 So.2d 469 (Fla.1984), we held that the penalty for the crime proscribed by subsection 794.011(2) is still a life sentence without eligibility for parole for twenty-five years, notwithstanding the inapplicability of the death penalty to that crime. * The degree of the crime is what the legislature says it is, and, just because a portion of a crime designated "capital" cannot be carried out, the degree is not lessened, at least not for the purposes of setting penalties for "attempt" crimes. The trial court, therefore, properly sentenced Hogan to thirty years' imprisonment. We quash that portion of Hogan to the contrary and direct the district court to affirm Hogan's original sentence.

Although we recognize that in doing so we present a chameleon-like appearance, we approve the district court's holding that Hogan could be tried by a jury of six rather than twelve persons. Section 910.13, Florida Statutes (1981), and Rule of Criminal Procedure 3.170 state that twelve persons shall constitute a jury to try all capital cases and that six persons shall constitute a jury to try all other cases. For the purposes of defining "capital" under that statute and rule we hold that a capital case is one where death is a possible penalty. This holding is consistent with Donaldson v. Sack, 265 So.2d 499 (Fla.1972), in which we wrestled with the correct procedure and forum to be employed in prosecuting first-degree murder cases after the death penalty had been invalidated by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). We held that Furman abolished capital offenses as previously imposed in Florida because the traditional definition of a capital case is one where the punishment is death.

Sexual battery of a child,...

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  • Griffith v. State
    • United States
    • Court of Appeal of Florida (US)
    • March 28, 1989
    ...of a state waiver or a life sentence after a jury verdict, has meant that no death sentence is or may be imposed. E.g., State v. Hogan, 451 So.2d 844, 845 (Fla.1984) ("a capital case is one where death is a possible penalty"); Lowe v. Stack, 326 So.2d 1 (Fla.1974) (first degree murder requi......
  • Adaway v. State
    • United States
    • United States State Supreme Court of Florida
    • March 17, 2005
    ...has previously held that a twelve-person jury is not required under the rule for a capital sexual battery trial. See State v. Hogan, 451 So.2d 844, 845-846 (Fla.1984). The matter should be referred to the Criminal Procedure Rules Committee for study and a possible ANSTEAD, J., concurs. 1. T......
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    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 19, 2022
    ...the Florida Statutes as a capital offense, it is not ‘capital' under case law unless its subject to the death penalty”); State v. Hogan, 451 So.2d 844, 845-46 (Fla. 1984) (“Sexual battery of a child, . . . while still defined as a ‘capital' crime by the legislature, is not capital in the se......
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