OTHLONE RUSS, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Russ seeks habeas corpus relief claiming appellate counsel was ineffective for failing to raise a jury instruction error regarding sexual battery charges. The court denies relief, holding that the instruction error was not fundamental because the record shows the jury convicted based on penetration, not mere contact, and thus the semantic error could not have misled the jury.
Appellate counsel was not ineffective because the instruction error was not fundamental error. Although the instruction contained a semantic error by using 'and/or' language, it did not mislead or influence the jury because the record clearly established that the jury convicted based on penetration alone, consistent with the statutory definition of sexual battery.
[1] A jury instruction that incorrectly states that unlawful sexual digital contact can be committed by mere union alone, without penetration, is not fundamental error if the…
[2] Appellate counsel is not ineffective for failing to raise an issue that is unlikely to succeed on appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the semantic error in the instruction may not be said to have misled or influenced the jury in any way and therefore could not have been deemed fundamental error”
Establishes that the instruction error was not fundamental because the record showed the jury convicted based on penetration alone, not mere contact.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRuss was convicted of six counts of sexual battery, including two counts involving digital contact with the victim's genitals and anus. The trial cour…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sexual Battery Statute Construction cases and more on FLexlaw
SCHWARTZ, Senior Judge.
This is an application for habeas corpus relief claiming ineffectiveness of appellate counsel in Russ v. State, 934 So. 2d 527 (Fla. 3d DCA 2006), review denied, 940 So. 2d 1125 (Fla.2006). The only arguable contention is that counsel incorrectly did not raise an issue concerning the trial court’s jury instruction, which, by stating that unlawful sexual digital contact, which was involved in two of the six counts of sexual battery of which the defendant was found guilty,1 could be committed either by penetration “and/or ” mere union with the vagina or anus of the victim, as held in Gill v. State, 586 So. 2d 471, 472 (Fla. 4th DCA 1991), told the jury that a guilty verdict could be based on simple digital contact alone, which it statutorily could not.2 We deny relief.
Because the claim was not preserved in the trial court, the mistaken instruction could not have been meaningfully presented on appeal unless it was deemed fundamentally erroneous, as indeed Gill also held. Gill, 586 So. 2d at 472; accord Holmes v. State, 842 So. 2d 187 (Fla. 2d DCA 2003); Palazzolo v. State, 754 So. 2d 731 (Fla. 2d DCA 2000). That holding in Gill, however, was based on the fact that the prosecutor in final argument affirmatively suggested that union alone was sufficient to convict. Nothing of the kind occurred here. To the contrary, the information charged, the trial testimony of the victim demonstrated, and the special verdict3 of the jury specifically found only that penetration had occurred, and there was no suggestion that mere contact was sufficient. Thus, the semantic error in the instruction may not be said to have misled or influenced the jury in any way and therefore could not have been deemed fundamental error. See State v. Weaver, 957 So. 2d 586 (Fla.2007). As the petitioner acknowledges, Graves v. State, 704 So. 2d 147 (Fla. 1st DCA 1997), review denied, 718 So. 2d 168 (Fla.1998), is exactly on point and so holds. See Hipp v. State, 650 So. 2d 91 (Fla. 4th DCA 1995)(distinguish-ing Gill); Pineiro v. State, 615 So. 2d 801 (Fla. 3d DCA 1993)(same); see also Weaver, 957 So. 2d at 589; Abbott v. State, 958 So. 2d 1140 (Fla. 4th DCA 2007); James v. State, 901 So. 2d 212 (Fla. 3d DCA 2005). No counsel is ineffective for failing to raise a point doomed at the outset. See Zack v. State, 911 So. 2d 1190, 1204 (Fla.2005); Rutherford v. Moore, 774 So. 2d 637, 643 (Fla.2000); Brown v. State, 967 So. 2d 257 (Fla. 3d DCA 2007); Coney v. State, 937 So. 2d 255 (Fla. 3d DCA 2006).
Petition denied.
. The others involved penile or oral contact, as to which simple union with the victim is sufficient under the law. See § 794.01 l(2)(b), Fla. Stat. (1999).
. Section 794.01 l(l)(h) provides that "sexual battery”
means 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; however, sexual battery does not include an act done for a bona fide medical purpose.
.The jury verdict stated, in pertinent part:
[Count 3:] GUILTY of SEXUAL BATTERY UPON A PERSON LESS THAN TWELVE YEARS OF AGE, to wit: digitally penetrating the rectum of D.H., as charged in Count 3 of the information.
[Count 9:] GUILTY of SEXUAL BATTERY UPON A PERSON LESS THAN TWELVE YEARS OF AGE, to wit: Digitally penetrating the vagina of D.H., as charged in Count 9 of the Information,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (16 total)
- Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000)
- Zack v. State, 911 So. 2d 1190 (Fla. 2005)
- State v. Weaver, 957 So. 2d 586 (Fla. 2007)
- Palazzolo v. State, 754 So. 2d 731 (Fla. 2d DCA 2000)
- Abbott v. State, 958 So. 2d 1140 (Fla. 4th DCA 2007)
- Leavorn Graves v. State, 704 So. 2d 147 (Fla. 1st DCA 1997)
- Ottes Rogers v. State, 586 So. 2d 471 (Fla. 3d DCA 1991)
- Gill v. State, 586 So. 2d 471 (Fla. 4th DCA 1991)
- Pineiro v. State, 615 So. 2d 801 (Fla. 3d DCA 1993)
- Hipp v. State, 650 So. 2d 91 (Fla. 4th DCA 1995)