Winchester v. State, 94-01691
| Decision Date | 03 June 1994 |
| Docket Number | No. 94-01691,94-01691 |
| Citation | 639 So.2d 84 |
| Parties | 19 Fla. L. Weekly D1229 Edward WINCHESTER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
The appellant filed a 3.850 motion contending that his sentence for sexual battery of a child is illegal because an essential element necessary for conviction under the statute was not alleged in the information, the jury instruction, or the verdict form. The missing allegation was the fact that the defendant is eighteen years of age or older. This issue was not raised in the trial court or by way of his previous appeal, motion for writ of habeas corpus, or mandamus.
We agree with the trial judge that the appellant did not properly preserve this issue for appellate review. In addition, we agree, as did the trial judge, with the Fourth District's holding in Jesus v. State, 565 So.2d 1361 (Fla.App. 4th DCA 1990), that section 794.011(2), Florida Statutes (1981), refers to a person's age as only prescribing the means by which an offender should be sentenced and not as an element of the crime.
We therefore affirm the denial of the 3.850 motion.
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State v. D.A.
...DCA 2002), aff'd, 863 So.2d 236 (Fla.2003). The Second District followed Jesus, and held that age was not an element. Winchester v. State, 639 So.2d 84 (Fla. 2d DCA 1994). As is already obvious from the preceding case citations, the Florida Supreme Court ultimately disapproved of the Fourth......
- Winchester v. State