ISIAH WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that lewd and lascivious assault is not a necessarily lesser included offense of sexual battery.
The defendant was charged with sexual battery on a victim under eleven years old. The jury returned a guilty verdict.…
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SHARP, Judge.
Walker was charged by information with sexual battery on a person eleven years of age or younger.1 The jury returned a guilty verdict and he was adjudicated and sentenced to life imprisonment. We affirm.
Walker’s sole issue on appeal is that the trial court erred in not giving the jury an instruction on lewd and lascivious assault,2 as a lesser included offense of sexual battery. We have held that these two crimes contain different elements and that, therefore, lewd and lascivious assault is not a necessarily lesser included offense of sexual battery. Harrielson v. State, 441 So. 2d 691 (Fla. 5th DCA 1983).
Further, the information in this case simply alleges the commission of a sexual battery on the victim. Therefore, there is no basis to argue that the elements of lewd and lascivious assault were sufficiently alleged as to make it a permissibly included lesser offense3 assuming that the “alleged evidence test” has any continued viability. Cf. S.L.S. v. State, 404 So. 2d 1105 (Fla. 1st DCA 1981), rev. denied, 415 So. 2d 1361 (Fla.1982).
AFFIRMED.
DAUKSCH and ORFINGER, JJ., concur. . § 794.011(2), Fla.Stat. (1983).
. § 800.04, Fla.Stat. (1983).
. The Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Florida Standard Jury Instructions in Criminal Cases, 257 (1981 ed.); see also Brown v. State, 206 So. 2d 377, 383 (Fla.1968).
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State v. Hightower, 509 So. 2d 1078 (Fla. 1987)…A 1986). The district court of appeal grounded its ruling on Ray v. State, 403 So. 2d 956 (Fla.1981), in which this Court held that lewd and lascivious conduct was not a necessarily lesser included offense of sexual battery.2 Accord Walker v. State, 464 So. 2d 1325 (Fla. 5th DCA 1985); Harrielson v. State, 441 So. 2d 691 (Fla. 5th DCA 1983). The state argues, however, that the decision below conflicts with this Court’s later opinion in State v. Lanier. In Lanier the defendant was charged under section 800.04…
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Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989)…d lascivious act is a lesser included offense of the crime of lewd, lascivious, or indecent assault upon a child, the latter crime is not a lesser included offense of the crime of sexual battery upon a child under the age of eleven. Walker v. State, 464 So. 2d 1325 (Fla. 5th DCA 1985). The rule in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), supports the dual convictions as elements of each crime are different. Our Supreme Court decided Carawan v. State, 515 So. 2d 161 (Fla.19…
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Welsh v. State, 850 So. 2d 467 (Fla. 2003)…t 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 th…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Harrielson v. State, 441 So. 2d 691 (Fla. 5th DCA 1983)
- S. L. S. v. State, 404 So. 2d 1105 (Fla. 1st DCA 1981)