Wagner v. State, 76-910
| Decision Date | 21 March 1978 |
| Docket Number | No. 76-910,76-910 |
| Citation | 356 So.2d 867 |
| Parties | Jimmy Lee WAGNER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender and Stuart A. Young, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Richard P. Zaretsky, and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for appellee.
Appellant appeals his conviction and life sentence for involuntary sexual battery on the grounds that trial court failed to instruct the jury on lesser included offenses, including attempted involuntary sexual battery, involuntary sexual battery which is a first degree felony, involuntary sexual battery which is a second degree felony, and assault and battery. We agree and reverse.
The victim was assaulted in the early hours of morning by an individual wearing a face mask and carrying a long object which at first appeared to be a gun, but turned out to be a piece of pipe. She testified that the assaulter performed vaginal and anal intercourse after which she was released. As a result of his constant threats to hit her on the side of the head with the pipe she submitted to his advances without struggle, but in fear of his carrying out his alleged threats. Upon her release, she immediately went to the police who took a statement from her and had her submit to a medical examination which discovered the presence of sperm and pubic hairs matching those of the appellant.
The trial court, in accordance with Section 794.011(3), Florida Statutes (1975), instructed the jury as follows:
"A person who commits sexual battery upon a person over the age of 11 years, without that person's consent; in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a violation of the Florida Criminal Law."
The court refused appellant's requested instructions on attempted involuntary sexual battery, Section 777.04, Florida Statutes (1975); the first degree felony of involuntary sexual battery, Section 794.011(4)(b), Florida Statutes (1975); the second degree felony of involuntary sexual battery, Section 794.011(5), Florida Statutes (1975); and assault and battery.
To say the least, the question of when it is necessary to give instructions on lesser included offenses is a persistent, agonizing problem to the trial bench. Seemingly, to put the matter at rest, the Florida Supreme Court held in Hand v. State, 199 So.2d 100 (Fla.1967) that it was error for the trial court to refuse to instruct on lesser included offenses when such instructions were required. Nevertheless, as Justice Sundberg stated in Lomax v. State, 345 So.2d 719, 721 (Fla.1977):
". . . this did not preclude the evolution of a subsequent line of authority that held the error to be harmless if, again, there exists overwhelming evidence that the defendant committed the crime charged."
The Supreme Court went on to hold that the harmless error doctrine will not be invoked when there is a failure to instruct on a lesser included offense.
Fla.R.Cr.P. 3.510 requires the court to instruct on an attempt to commit the crime charged as a lesser included offense, regardless of whether the evidence is consistent with such an instruction. Surprisingly, appellee has not addressed this specific question in its brief. In DeLaine v. State, 262 So.2d 655 (Fla.1972) the Supreme Court utilized the harmless error doctrine in affirming a conviction for rape where the trial court had failed to instruct on...
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...which in any particular case depends upon the pleading and proof. Turner v. State, 363 So.2d 1 (Fla.4th DCA 1978); Wagner v. State, 356 So.2d 867 (Fla.4th DCA 1978); Smith v. State, 340 So.2d 1216 (Fla.4th DCA 1976). The state then concedes in its brief that the pleading did not allege the ......
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Weller v. State
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Eaves v. State, 76-2201
...and assault and battery. See State v. Washington, 268 So.2d 901 (Fla.1972); Brown v. State, 206 So.2d 377 (Fla.1968); Wagner v. State, 356 So.2d 867 (Fla. 4th DCA 1978); Allison v. State, 162 So.2d 922 (Fla. 1st DCA Accordingly, appellant's conviction and sentence are reversed and remanded ......
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Turner v. State, 76-2547
...involving the use of force likely to cause serious personal injury, under Brown v. State, 206 So.2d 377 (Fla.1968). Wagner v. State, 356 So.2d 867 (Fla. 4th DCA 1978); Smith v. State, 340 So.2d 1216 (Fla. 4th DCA 1976). It is not a necessarily included offense. Hence, an instruction is requ......