State v. Wells, 84-1088
| Decision Date | 22 February 1985 |
| Docket Number | No. 84-1088,84-1088 |
| Citation | 10 Fla. L. Weekly 490,466 So.2d 291 |
| Parties | 10 Fla. L. Weekly 490 STATE of Florida, Appellant, v. Carl Marion WELLS, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellee.
The state appeals from the trial court's order granting defendant's motion to dismiss the information which charged defendant with sexual battery of a child, a violation of section 794.011(2), Florida Statutes (1983). The trial court reasoned that sexual battery of a child is labeled by the legislature as a capital offense and, since article I, section 15(a) of the Florida Constitution provides that no person shall be tried for a capital crime without indictment by a grand jury, defendant could not be properly charged by information. The state contends on appeal that sexual battery of a child pursuant to section 794.011(2), Florida Statutes (1983), need not be charged by indictment in light of two recent Florida Supreme Court decisions.
In Buford v. State, 403 So.2d 943 (Fla.1981), the supreme court held that sexual battery of a child is no longer punishable by death. Subsequently, in State v. Hogan, 451 So.2d 844 (Fla.1984), the supreme court held that a twelve-person jury is not required for a crime labeled "capital" by the legislature but for which the death penalty cannot be imposed. A person charged with sexual battery of a child can therefore be tried by a six-person jury.
We agree with the state's contention and reverse. We hold that inasmuch as the crime of sexual battery of a child is no longer a capital crime in the sense that conviction thereof is punishable by death, a person may be charged with commission of that crime by information. We believe that our holding is a logical extension of the holding in Hogan which, we recognize, had not been decided at the time of the trial court's order which is appealed from here.
The rationale of Hogan may be perceived to be that if conviction of that felony is not serious enough to be punishable by death, it is not serious enough to be classified as a capital felony within the meaning and intent of the statute calling for a twelve-person jury in capital felony cases. Consistent with that rationale, we believe that since conviction of that felony is not serious enough to be punishable by death, it is not serious enough to be classified as a capital felony within the...
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