Welsh v. State, 1D01-648.
| Decision Date | 02 May 2002 |
| Docket Number | No. 1D01-648.,1D01-648. |
| Citation | 816 So.2d 175 |
| Parties | Travis WELSH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, Anne C. Toolan, Assistant Attorney General, Tallahassee, for Appellee.
Travis Welsh raises numerous issues resulting from his convictions for the offenses of capital sexual battery on a person less than 12 years of age in violation of section 794.011(2)(a), Florida Statutes (1997), and lewd and lascivious conduct, proscribed by section 800.04, Florida Statutes (1997). We affirm all points without discussion, except that urging the lower court erred in denying appellant's request to instruct the jury on lewd and lascivious conduct as a lesser offense to that of sexual battery.
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.
Appellant was accused of committing capital sexual battery in violation of section 794.011(2)(a), because he, as a person 18 years of age or older, placed his mouth on the vagina of the victim, a person less than 12 years of age. The allegations clearly comply with the definition of sexual battery, which, as set out in section 794.011(1)(h), describes such conduct as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object." In defining the offense of a lewd and lascivious act, section 800.04, Florida Statutes (1997), has, by specifically excluding sexual battery as a means of perpetrating such act, removed sexual battery as an element involved in the commission of a lewd and lascivious act. The statute provides:
A person who:
Thus, the above provisions make clear that the offenses of sexual battery and lewd and lascivious act are mutually exclusive, a conclusion the Florida Supreme Court reached in State v. Hightower, 509 So.2d 1078, 1079 (Fla.1987). Although the issue raised before the court in Hightower pertained solely to the question of whether a lewd and lascivious act was a necessarily included lesser offense to sexual battery, the court's analysis is broad enough to apply as well to its inclusion as a permissible lesser offense. Note the following:
[It] 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.
Id. (footnote omitted).
The crime of lewd and lascivious conduct cannot, therefore, by operation of law, be considered any category of lesser offense to sexual battery. The information clearly complies with the statutory definition of sexual battery in that oral union with a child's vagina falls within the definition of sexual battery as provided in section 794.011(1)(h), and, because the victim was less than 12 years of age, the act is sexual battery, regardless of consent. As a result, the two crimes are mutually exclusive by statutory definition, and one cannot be convicted of a lewd and...
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...C. Toolan, Assistant Attorney General, Tallahassee, FL, for Respondent. PER CURIAM. 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, ......
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