Welsh v. State
| Decision Date | 12 June 2003 |
| Docket Number | No. SC02-1092.,SC02-1092. |
| Citation | 850 So.2d 467 |
| Parties | Travis WELSH, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
Charles J. Crist, Jr., Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Anne C. Toolan, Assistant Attorney General, Tallahassee, FL, for Respondent.
We have for review the decision in Welsh v. State, 816 So.2d 175 (Fla. 1st DCA 2002), which certified conflict with the decisions in Velazquez v. State, 648 So.2d 302 (Fla. 5th DCA 1995), and King v. State, 642 So.2d 649 (Fla. 2d DCA 1994). The conflict issue is whether lewd and lascivious conduct as set forth in section 800.04, Florida Statutes (1997), is a permissive lesser included offense of capital sexual battery1 as set forth in section 794.011(2)(a), Florida Statutes (1997). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude, based on this Court's opinion in State v. Hightower, 509 So.2d 1078 (Fla.1987), that lewd and lascivious conduct is not a permissive lesser included offense of capital sexual battery, and thus, the defendant was not entitled to a jury instruction on the offense.2
By amended information filed October 13, 2000, Travis Welsh was charged with one count of capital sexual battery upon a person less than twelve years of age, by oral-vaginal contact in contravention of section 794.011(2)(a), Florida Statutes.3 Welsh was also charged with lewd and lascivious assault of the victim by touching her breasts or vagina or both on occasions separate from the occasions underlying the charge of sexual battery in contravention of section 800.04(1), Florida Statutes.4 A jury trial was held. As to the capital sexual battery charge, the trial court instructed the jury on the lesser included offenses of battery, attempted sexual battery, and assault. The trial court denied Welsh's request for an instruction on lewd and lascivious conduct as a lesser included offense of the sexual battery charge. The jury returned verdicts of guilty on both charged counts. The trial court sentenced Welsh to the statutorily mandated term of life imprisonment without the possibility of parole for the offense of capital sexual battery, and a concurrent term of fifteen years' imprisonment for the offense of lewd and lascivious conduct.
Welsh appealed to the First District Court of Appeal, arguing that the jury should have been instructed on lewd and lascivious conduct as a permissive lesser included offense of capital sexual battery. Welsh relied on statements in King and Velazquez, which indicate that when a defendant is charged with sexual battery, if the evidence adduced at trial could support a jury verdict for lewd and lascivious conduct, the jury should be instructed on the lesser offense. See King, 642 So.2d at 649-50
; Velazquez, 648 So.2d at 305 n. 7. The First District rejected Welsh's argument and affirmed his conviction, explaining its reasoning as follows:
This court has previously stated that one cannot be convicted of committing a lewd and lascivious act on a child less than 12 for conduct that also constitutes the offense of sexual battery. See Jozens v. State, 649 So.2d 322, 323 (Fla. 1st DCA 1995)
. Accord State v. Robinson, 771 So.2d 1256 (Fla. 3d DCA 2000); McGriff v. State, 526 So.2d 995 (Fla. 4th DCA 1988); Walker v. State, 464 So.2d 1325 (Fla. 5th DCA 1985). The appellant, however, relying on Velazquez v. State, 648 So.2d 302, 305 n. 7 (Fla. 5th DCA 1995) (on reh'g); King v. State, 642 So.2d 649 (Fla. 2d DCA 1994); and Kolaric v. State, 616 So.2d 117 (Fla. 2d DCA 1993), argues that he is entitled to the instruction as a permissible lesser included offense to sexual battery, because the jury could have rejected the testimony of state witnesses and decided that no sexual battery occurred, and it could have determined as well from the evidence that appellant was guilty only of a lewd and lascivious act. We cannot agree.
Initially, the Schedule of Lesser Included Offenses does not list the offense of lewd and lascivious act as a Category 2 (permissible lesser) crime. As the supreme court observed in In re Use By the Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 597 (Fla.1981), the "schedule will be an authoritative compilation upon which a trial judge should be able to confidently rely." The exclusion of lewd and lascivious act from the list of lesser offenses should not be viewed as a mere inadvertent omission. Even before the schedule's adoption, the court had constructed the following analysis to determine whether a particular offense should be permissibly included within a greater offense: (1) whether the information specifically alleged all the statutory elements of the lesser offense, and (2) whether evidence presented at trial would support the lesser offense. See Brown v. State, 206 So.2d 377, 383 (Fla. 1968)
. By operation of law, the information in the present case charging capital sexual battery could not also allege all of the statutory elements of lewd and lascivious conduct.
Welsh, 816 So.2d at 176-77 (emphasis supplied).
In Welsh, the First District relied on Hightower, in which the issue was whether lewd and lascivious conduct was a necessarily lesser included offense of capital sexual battery. In rejecting this argument in Hightower, we construed the statutory language of section 800.04(1):
[I]t is evident that the phrase "without committing the crime of sexual battery" was included to differentiate between crimes of sexual battery and lewd and lascivious conduct. Had the phrase been excluded, a person having forcible sexual intercourse with a child under sixteen would be guilty of both crimes. As now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive.
After careful consideration, we adopt the opinion of the First District Court of Appeal in this case and approve Welsh. We also disapprove those statements in King and Velazquez which indicate that a defendant is entitled to an instruction on lewd and lascivious conduct pursuant to section 800.04 as a permissive lesser included offense of capital sexual battery. See Velazquez, 648 So.2d at 305 n. 7
; King, 642 So.2d at 649-50. We make clear, however, that the holding regarding permissive included offenses pertains only to the 1997 versions of the applicable statutes.5
It is so ordered.6
I concur in the opinion of the majority because I agree that this issue is controlled by this Court's holding in State v. Hightower, 509 So.2d 1078 (Fla.1987), that lewd and lascivious conduct is not a necessarily included lesser offense of capital sexual battery. A necessarily included offense is one in which the statutory elements of the lesser offense are subsumed by the greater offense, as charged. See Brown v. State, 206 So.2d 377, 382 (Fla. 1968)
; see also Hand v. State, 199 So.2d 100, 103 (Fla.1967) (); Rodriguez v. State, 789 So.2d 513, 514 (Fla. 5th DCA 2001) (). A permissive lesser included offense may or may not be included in the charged offense depending on the pleadings and the evidence. See Amado v. State, 585 So.2d 282, 282 (Fla. 1991).
The Court in Hightower based its holding on the statutory language of section 800.04, Florida Statutes (1983), specifically the inclusion of the phrase "without committing the crime of sexual battery," to conclude that lewd and lascivious conduct was not a necessarily included lesser offense of capital sexual battery. See509 So.2d at 1079. However, if we were not bound by this Court's precedent in Hightower, I would adopt Justice Shaw's well-reasoned opinion concurring in result only in that case, in which he stated that the inclusion of the phrase "without committing the crime of sexual battery" actually supported the conclusion that section 800.04 was a necessarily included lesser offense of capital sexual battery. As Justice Shaw ...
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