Velazquez v. State
| Decision Date | 06 January 1995 |
| Docket Number | No. 93-1883,93-1883 |
| Citation | 648 So.2d 302 |
| Parties | 20 Fla. L. Weekly D174 Julian Max VELAZQUEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
We deny rehearing but withdraw the prior opinion and issue the following in its place.
Julian Velazquez appeals the judgments and sentences in four cases in which he was convicted of multiple sexual offenses involving children. Although Velazquez raises several issues on appeal, only one possesses merit. Specifically, in case number CR 92-6394, we are constrained to reverse Velazquez's convictions for two counts of capital sexual battery upon a person less than twelve years of age because the victim was not less than twelve years of age on the date of the offenses.
The information in case number CR 92-6394 charged Velazquez with two counts of capital sexual battery in that:
JULIAN VELAZQUEZ, a person eighteen (18) years of age or older, on the 5th day of June, 1992, in said County and State, did, in violation of Florida Statute 794.011(2), commit a sexual battery upon [the victim], a person less than twelve (12) years of age, and in furtherance thereof JULIAN VELAZQUEZ did with his mouth have union with the penis of [the victim].
Section 794.011(2) provides that:
A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony, punishable as provided in ss. 775.082 and 921.141....
Sec. 794.011(2), Fla.Stat. (1991) (emphasis added).
Velazquez filed a pretrial motion to dismiss both capital sexual battery counts on the ground that the victim was not "a person less than 12 years of age" because the victim's twelfth birthday was June 5, 1992, the same day the sexual batteries occurred. The state filed a traverse asserting that the victim was less than twelve years of age at the time of the offenses because the offenses occurred prior to 3:49 p.m. on June 5, 1992, and the victim was born at 3:49 p.m. on June 5, 1980. At the hearing on the motion to dismiss, the state asserted that the offenses occurred "around noon or one o'clock." 1
The trial court denied Velazquez's motion to dismiss, concluding that, because the victim's birthday was June 5, 1980, "as long as the alleged conduct occurred on or before June 5, 1992 the alleged criminal activity falls within the ambit of this statute." The trial court erred in so ruling.
Chapter 794 of the Florida Statutes fails to define who is "a person less than 12 years of age" under section 794.011(2); however, section 2.01, Florida Statutes (1991), provides that the general common and statute laws of England in existence on July 4, 1776, remain in force in this state unless inconsistent with the Constitution and laws of the United States or with the acts of the Florida legislature. See In re Forfeiture of 1978 Chevrolet Van, 493 So.2d 433, 436-37 (Fla.1986). In this case, because of the absence of any statutory law on this point, we must consider the common law in determining the victim's age at the time of the offenses. See Cate v. Oldham, 450 So.2d 224, 225 (Fla.1984). See also State v. Brown, 443 S.W.2d 805, 807 (Mo.1969).
In order to avoid disputes, the common-law rule regarding age does not recognize fractions of a day. See In re Harris, 5 Cal. 4th 813, 21 Cal.Rptr.2d 373, 391, 855 P.2d 391, 409 (1993); People v. Anderson, 108 Ill.App.3d 563, 64 Ill.Dec. 136, 142, 439 N.E.2d 65, 71 (1982); Parker v. State, 61 Md.App. 35, 484 A.2d 1020, 1021-22 (1984); State v. Brown, 443 S.W.2d 805, 806 (Mo.1969); Ellingham v. Morton, 116 A.D.2d 1032, 498 N.Y.S.2d 650, 651 (N.Y.App.Div.), appeal denied, 67 N.Y.2d 607, 502 N.Y.S.2d 1025, 494 N.E.2d 112 (1986); State v. Clark, 84 Ohio App.3d 789, 618 N.E.2d 257, 258 (1993); Commonwealth v. Iafrate, 527 Pa. 497, 594 A.2d 293, 294 (1991). 2 Under the common-law rule a person is deemed to have been born on the first minute of the day of his birth. See Harris, 21 Cal.Rptr.2d at 391, 855 P.2d at 409. In accordance with this principle, the common-law rule for determining a person's age is that a person reaches a given age at the earliest moment of the day before the anniversary of his birth. See Harris, 21 Cal.Rptr.2d at 390, 855 P.2d at 408; Parker v. State, 484 A.2d at 1022; State v. Brown, 443 S.W.2d at 807; Ellingham v. Morton, 498 N.Y.S.2d at 651; Commonwealth v. Iafrate, 594 A.2d at 294. See generally R.F. Martin, Annotation, Inclusion or Exclusion of the Day of Birth in Computing One's Age, 5 A.L.R.2d 1143 (1949). The underlying rationale for this rule is that a person is in existence on the day of his birth; thus, he has lived one year and one day on the first anniversary of his birth. See Harris, 21 Cal.Rptr.2d at 390, 855 P.2d at 408 (citing State v. Alley, 594 S.W.2d 381, 382 (Tenn.1980)). 3
While we conclude that under section 2.01 the common law controls in this case, we note that the modern trend is to adopt what has been described as the more commonsense rule that a person attains a certain age on that person's corresponding birthday. See Harris, 21 Cal.Rptr.2d at 391-93, 855 P.2d at 409-11; Ellingham v. Morton, 498 N.Y.S.2d at 651; Commonwealth v. Iafrate, 594 A.2d at 295. Like the common-law rule, the birthday rule does not recognize fractions of a day; thus, under the birthday rule a person attains a given age at 12:01 a.m. or at the beginning of the anniversary date of the person's birth. See Harris, 21 Cal.Rptr.2d at 391-93, 855 P.2d at 409-11; Ellingham v. Morton, 498 N.Y.S.2d at 651. See also Parker v. State, 484 A.2d at 1022; State v. Clark, 618 N.E.2d at 258. 4 Some state legislatures have preempted the common-law rule by enacting statutes which adopt the birthday rule. See Harris, 21 Cal.Rptr.2d at 390, 855 P.2d at 408. 5
Here, Velazquez's motion to dismiss should have been granted because, under either the common-law rule or the birthday rule, the victim turned twelve before noon on June 5, 1992, the time the state alleged that the offenses occurred. Under the common-law rule, the victim turned twelve at the earliest moment on June 4, 1992, and under the birthday rule, the victim turned twelve at 12:01 a.m. on June 5, 1992. 6 In the event of our reversal of Velazquez's convictions under section 794.011(2), the state has requested that we enter judgments of conviction against Velazquez for the lesser offense of "sexual battery upon a person 12 years of age or older, without that person's consent." See Sec. 794.011(5), Fla.Stat. (1991). In order for this court to grant this request, section 794.011(5) must be a necessarily lesser-included offense of section 794.011(2); i.e., all of the elements of section 794.011(5) must also be elements of section 794.011(2). See Gould v. State, 577 So.2d 1302 (Fla.1991). See generally Brown v. State, 206 So.2d 377 (Fla.1968). Because section 794.011(5) contains the additional element of lack of the victim's consent, the offense defined in that statute is not a necessarily lesser-included offense of section 794.011(2). Accordingly, we must deny the state's request to enter judgments of conviction under section 794.011(5). We also conclude that we cannot enter judgments of conviction for lewd, lascivious, or indecent assault or act upon or in the presence of a child under the age of sixteen years as set forth in section 800.04, 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). 7
Accordingly, we vacate Velazquez's two convictions for capital sexual battery. In all other respects, we affirm Velazquez's convictions and sentences. 8
AFFIRMED in part; REVERSED in part.
1 At trial, the state introduced evidence that the offenses occurred between 9:00 a.m. and 11:30 a.m.
2 "In the space of a day all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes." 2 William Blackstone, Commentaries
(emphasis in original). Although courts have made exceptions to this common-law rule, such as in cases involving priorities of deeds or liens filed on the same day, courts generally have not applied such exceptions in criminal cases. Parker v. State, 61 Md.App. 35, 484 A.2d 1020, 1022 (1984); State v. Brown, 443 S.W.2d 805, 806 (Mo.1969). See also Crawford v. Feder, 27 Fla. 523, 525, 8 So. 642, 642 (1891) () (citations omitted). In this regard, we note that the Florida Supreme Court did not apply such an exception in Savage v. State, 18 Fla. 970 (Fla.1882), a case relied upon by the state in the present case.
3 In Commonwealth v. Iafrate, 527 Pa. 497, 594 A.2d 293 (1991), the court discussed the genesis of the common-law rule:
... [T]he rule that a person reaches a given age on the day preceding the anniversary of his birth can be traced to seventeenth century England. See Nichols v. Ramsel, 86 Eng.Rep. 1072 (K.B.1677); Herbert v. Turball, 83 Eng.Rep. 1129 (K.B.1663). See also 1 W. Blackstone, Commentaries
(); [citation omitted]. The rule developed as
an exception to the general rule of the common law for computation of time which excluded the first day and included the last .... The exception was a fiction introduced in the law apparently because...
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