State v. Sedia
| Decision Date | 13 January 1993 |
| Docket Number | No. 92-0354,92-0354 |
| Citation | 614 So.2d 533 |
| Parties | 18 Fla. L. Week. D271 STATE of Florida, Appellant, v. Michael SEDIA, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for appellant.
J. David Bogenschutz of Bogenschutz & Dutko, P.A., Fort Lauderdale, for appellee.
We reverse an order dismissing two sexual battery charges and discharging the defendant. It was error to conclude that the facts as developed on the defendant's sworn motion to dismiss cannot support a sexual battery conviction under either section 794.011(4)(a) or section 794.011(5) of the Florida Statutes.
The state charges that Sedia, a physical therapist, was treating a 62 year old woman patient by manipulating her hip and buttocks. The patient was lying nude from the waist down, on the therapy table facing away from the appellant. The act occurred in a hospital's physical therapy room. It is undisputed that the patient was awake. The patient claims that without warning, she felt a penis enter her vagina from behind. No force was used other than the force necessary to complete the penetration. The patient pulled away, immediately turned around, and saw the defendant with his penis exposed. The trial court concluded that those facts, if proven, would not be sufficient to convict Sedia of any sexual battery under Florida law.
Count I of the information alleges a violation of section 794.011(4)(a), Florida Statutes, which provides:
A person who commits sexual battery upon a person 12 years of age or older, without that person's consent ... is guilty of a felony of the first degree ... when the victim is physically helpless to resist. (emphasis added)
Section 794.011(1)(e) defines the term "physically helpless" as unconscious, asleep, or for any other reason physically unable to communicate an unwillingness to an act." Victims are not considered "physically helpless to resist" when they are able to communicate their unwillingness to participate in sexual intercourse, even if otherwise helpless. Norman v. State, 555 So.2d 1316 (Fla. 5th DCA1990).
In this case, even though the patient was not unconscious or asleep, it is reasonable to conclude that she was "otherwise physically unable to communicate an unwillingness to act" prior to penetration. Whether a victim is physically unable to communicate such unwillingness, and is therefore "physically helpless" to resist, should be resolved by the fact finder. Perez v. State, 479 So.2d 266, 267 (Fla. 5th DCA1985). In Perez, the court upheld a verdict under this charge where there was evidence that the defendant broke the victim's nose causing severe bleeding prior to the sexual assault. Therefore, a jury could find that the blow "rendered the victim physically unable to effectively communicate her unwillingness to the act." Id. at 267.
Here, as in Perez, a jury could conclude that the victim had no opportunity to communicate her unwillingness to have sexual intercourse with the defendant before the alleged penetration occurred. As this is a reasonable interpretation of the statute, the trial court erred in dismissing count I against Sedia. See State v. Milton, 488 So.2d 878 (Fla. 1st DCA), cert. denied, 479 U.S. 1012, 107 S.Ct. 659, 93 L.Ed.2d 713 (1986). In so holding, we do not mean to imply that all people attacked from behind fall within the scope of the statute.
Count II of the information accused Sedia of violating Florida Statute 794.011(5). This section provides:
A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury is guilty of a felony of the second degree.
Although this statutory language is open to interpretation, we are able to clearly determine the legislature's intent. See Lowry v. Parole and Probation Comm'n, 473 So.2d 1248, 1249 (Fla.1985). Courts may consider an amendment to a statute that is enacted soon after a controversy in interpreting the original statute as a legislative interpretation of the original law, and not as a substantive change. Lowry. In Lowry, the court determined that in that case it was "unmistakable" that amendments contained in a pending bill were expressions of the legislature's prior and continuing intent. Id. at 1250.
Here the legislature left no doubt as to its initial intention. In April of 1992, the legislature enacted section 794.005 of the Florida Statutes, clarifying that the only force the state must prove to convict a defendant under section 794.011(5) is the force inherent in the penetration. The statute states:
The legislature ... never intended that the sexual battery offense described in 794.011(5) require any force or violence beyond the force and violence that is inherent in the accomplishment of "penetration" or "union ..." (emphasis added)
Sedia's only argument with respect to his interpretation of the statute is that the Florida Supreme Court, in Gould v. State, 577 So.2d 1302, 1305 (Fla.1991), assumed that more force than that inherent in the act of penetration is needed to convict a defendant under section 794.011(5). However, the issue in Gould did not involve the degree of force necessary to state a prima facie case. Rather, Gould only involved the question of whether an offense committed under one subsection, which includes "physical force" as an element is a lesser included offense of another subsection. Further, subsequent to Gould, the legislature clarified that it never intended that the state would be required to prove force greater than that inherent in the act of penetration. Applying the supreme court's direction in Lowry, this court should recognize the legislature's statement of intent. See Lowry, 473 So.2d...
To continue reading
Request your trial
-
Coley v. State
... ... Perez v. State, 479 So.2d at 267; see also, State v. Sedia, 614 So.2d 533 (Fla. 4th DCA ... Page 1033 ... 1993) (jury could reasonably conclude that victim had no opportunity to communicate her unwillingness to have sexual intercourse with defendant before the alleged penetration) ... The majority fails to address that the victim ... ...
-
State v. Jones
...non-consent. Id. at 1276–77. Other jurisdictions, with similar statutes, have adopted the intrinsic force standard. See State v. Sedia, 614 So.2d 533, 535 (Fla.App.1993) ; State v. Chandler, 939 So.2d 574, 580 (La.App.2006). Based on the plain language of I.C. § 18–6101(3), we hold that the......
-
State v. Jones
...would believe to be affirmative and freely-given permission to the act of sexual penetration. Id. at 1277. Accord State v. Sedia, 614 So. 2d 533, 535 (Fla. Dist. Ct. App. 1993) (recognizing that the Florida Legislature had explicitly adopted the intrinsic force standard); State v. Chandler,......
-
Macchione v. State
...Foster v. State, 861 So.2d 434, 439 (Fla. 1st DCA 2002); Matthews v. State, 760 So.2d 1148, 1150 (Fla. 5th DCA 2000); State v. Sedia, 614 So.2d 533, 535 (Fla. 4th DCA 1993). Our canvass of the pertinent case law revealed no reported decision applying the pre-amendment version of section 836......
-
§ 33.04 Rape: Actus Reus
...Id. (quoting People v. Young, 190 Cal. App. 3d 248, 257-58 (1987)).[101] 609 A.2d 1266 (N.J. 1992). [102] Accord, State v. Sedia, 614 So. 2d 533, 535 (Fla. 4th DCA 1993).[103] The statute requires proof of "force or coercion"; "lack of consent" is not an express element. The practical effec......
-
§33.04 RAPE: ACTUS REUS
...(quoting People v. Young, 190 Cal. App. 3d 248, 257-58 (Ct. App. 1987)).[101] . 609 A.2d 1266 (N.J. 1992).[102] . Accord, State v. Sedia, 614 So. 2d 533, 535 (Fla. Dist. Ct. App. 1993).[103] . The statute requires proof of "force or coercion"; "lack of consent" is not an express element. Th......
-
TABLE OF CASES
...808 So. 2d 166 (Fla. 2002), 140 Scott, People v., 927 P.2d, 120, 122 Searcy, State v., 798 P.2d 914 (Idaho 1990), 340 Sedia, State v., 614 So. 2d 533 (Fla. Dist. Ct. App. 1993), 557 See v. State, 757 S.W.2d 947 (Ark. 1988), 304 Semayne's Case, 5 Co. Rep. 91a, 91b, 250 Sepulveda, Commonwealt......