ISSAC MELVIN WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed a conviction for lewd assault because the indictment did not properly allege the elements of that crime, and lewd assault is not a necessarily lesser included offense of attempted sexual battery. The defendant was initially charged with attempted sexual battery, but the trial court allowed the case to proceed on a lewd assault charge after acquitting the defendant on the original charge.
No, the defendant cannot be convicted of lewd assault under these circumstances because the indictment did not contain the requisite allegations for lewd assault, and it is not a necessarily lesser included offense.
[1] A court cannot instruct a jury on a lesser included offense unless the facts support the charge and the accusatory pleading alleges all the elements of the lesser include…
[2] Lewd assault is not a necessarily lesser included offense of attempted sexual battery.
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Join FLexlaw to unlock all legal intelligence“Because lewd assault is not a necessarily lesser included offense then the court cannot charge the jury in regard to that crime unless the facts support such a charge and the accusatory pleading alleges all the elements of the lesser included offense.”
Establishes the legal principle for charging a lesser included offense.
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Join FLexlaw to unlock all legal intelligenceThe appellant was charged with attempted sexual battery on a person eleven years of age or younger. The State proved the victim was older than eleven …
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[*383] DAUKSCH, Judge.
Appellant, over eighteen years of age, was charged with the crime of attempted sexual battery upon a person eleven years of age or younger.
Section 777.04(1) and Section 794.011(2), Florida Statutes (1975).
At trial the State proved the person was older than eleven years and that she acted in a voluntary manner while the Defendant attempted a sexual act. In fact, she charged money for her participation.
The trial court granted a Judgment of acquittal as to the crime charged but permitted, over objection, the trial to continue for the jury to determine whether the Defendant committed an attempted lewd assault as proscribed in Section 800.04, Florida Statutes (1975).
The jury was unable to reach a verdict so a mistrial was declared. The Defendant was again brought to trial on the same indictment, attempted sexual battery upon a person under eleven, and the jury was given the case as a case of lewd assault. The Defendant was convicted of “handling & fondling a child under the age of 14 years in a lewd, lascivious or indecent manner.” This is essentially the wording of Section 800.04, Florida Statutes (1975). It is commonly called lewd assault. According to DeLaine v. State, 262 So. 2d 655 (Fla. 1972), lewd assault is not a necessarily lesser included offense.
Because lewd assault is not a necessarily lesser included offense then the court cannot charge the jury in regard to that crime unless the facts support such a charge and the accusatory pleading alleges all the elements of the lesser included offense. Brown v. State, 206 So. 2d 377 (Fla.1968). The accusatory pleading in the case at bar charges the Appellant “. did attempt to commit a Sexual Battery upon a person eleven (11) years of age or younger, . . .” The requisite allegations under the Lewd Assault Statute, Section 800.04, Florida Statutes (1975), are not there. That the State chose to go with those allegations even after the mistrial and the evident lack of proof is a curious circumstance, indeed. The Judgment and Sentence are REVERSED.
ANSTEAD and MOORE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- DeLAINE v. State, 262 So. 2d 655 (Fla. 1972)