Florida/Georgia Personal Injury & Workers Compensation

...Furthermore, he made progressively more critical comments regarding Dr. Brake as the interview progressed. Following the interrogation, Rankin formally was charged with sexual battery of a child under the age of twelve pursuant to Fla. Stat. 794.011(2)....

...The Medical Evidence We now address plaintiffs' assertion that the medical evidence available to Evans precluded the existence of probable cause to arrest Rankin for the crime with which he was charged. The Rankins note that penetration is an element of the crime of sexual abuse of a child under twelve. See § 794.011 Fla....

...However, even disregarding these additional statements, probable cause existed as a matter of law. 26 We note that under Fla. Stat. 794.022(1) (West Supp.1990), "[t]he testimony of the victim need not be corroborated in a prosecution under s. 794.011 [commission of a sexual battery of a child under twelve]." However, we do not need to address the question of how this statutory section would apply when the victim is a young child and the statement is merely being used to establish proba...

...remand for proceedings consistent with this opinion. It is so ordered. SHAW, C.J., and OVERTON, McDONALD, GRIMES, KOGAN and HARDING, JJ., concur. NOTES [1] We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. [2] § 794.011(2), Fla....

...ch he was not charged, but which was submitted to the jury as a lesser included offense when in fact it was not, may challenge that conviction when he failed to object to the submission of that crime to the jury. We quash the instant decision. Under section 794.011(5), Florida Statutes (1975), [1] an information alleged that Ray "did commit a sexual battery upon ..., a person over the age of eleven, without her consent, and in the process thereof used physical force and violence not likely to ca...

...State, 351 So.2d 382 (Fla. 4th DCA 1977). Nor is it a category 4 lesser included offense in the instant case because the information did not contain all the elements specified in section 800.04. See id.; Brown. It is also not "lesser" because both section 794.011(5) and section 800.04 are second-degree felonies....

...The burden was on the defendant to show that he timely objected to what would have been reversible error on the part of the trial court. The defendant has failed to meet this burden, and his conviction should be affirmed. BOYD, J., concurs. NOTES [1] § 794.011(5) provides that: A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree, punishable as provided in s....

...Furthermore, he made progressively more critical comments regarding Dr. Brake as the interview progressed. Following the interrogation, Rankin formally was charged with sexual battery of a child under the age of twelve pursuant 7 to Fla. Stat. 794.011(2)....

...The Medical Evidence We now address plaintiffs’ assertion that the medical evidence available to Evans precluded the existence of probable cause to arrest Rankin for the crime with which he was charged. The Rankins note that penetration is an element of the crime of sexual abuse of a child under twelve. See § 794.011 Fla....

...However, even disregarding these additional statements, probable cause existed as a matter of law. 26 We note that under Fla. Stat. 794.022(1) (West Supp. 1990), “[t]he testimony of the victim need not be corroborated in a prosecution under s. 794.011 [commission of a sexual battery of a child under twelve].” However, we do not need to address the question of how this statutory section would apply when the victim is a young child and the statement is merely being used to establish pro...

...s was that he had never met Dacosta and that the evidence against him was planted by Detective Bukata. Sexual Battery Charge We hold that Boyd's motion for judgment of acquittal as to the sexual battery charge was properly denied by the trial court. Section 794.011(3), Florida Statutes (1997), provides in pertinent part: A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony.... Sexual battery is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another." § 794.011(1)(h), Fla....

...(1997). Consent is defined as "intelligent, knowing, and voluntary consent and does not include coerced submission. `Consent' shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender." § 794.011(1)(a), Fla....

...did not specialize in treating sexual abuse. [Savaiko Depo., Vol. I, at 119-120; Hogan Depo. at 68]. 4 Savaiko claimed in her search warrant affidavits that the laws violated were Florida Statutes § 794.023, sexual battery by multiple perpetrators; § 794.011(2), sexual battery on a child under twelve years of age by an offender under 18 years of age; § 777.03, accessory after the fact; § 777.011, aiding and abetting commission of a crime; § 415.513, failing to report child abuse or neglect;...

...clearly established law. However, Savaiko also premised the search warrants on violations of other statutes. Specifically, the warrant affidavits include alleged violations of § 794.023, which prohibits sexual battery by multiple perpetrators, and § 794.011(2), which prohibits sexual battery on a child under twelve years of age by an offender under eighteen years of age....

...The affidavits also stated that Savaiko had sworn statements by two former Ranch employees that reports documenting the abuse and the identities of the perpetrators were kept at the Ranch building and the residence. These facts are adequate to establish arguable probable cause that Florida Statutes § 794.023 and § 794.011(2) had been violated....

...Gen., Tallahassee, for respondent. SHAW, Justice. We have for review Heuring v. State, 495 So.2d 893 (Fla. 1st DCA 1986), in which the district court certified the following question as one of great public importance: IN A PROSECUTION FOR SEXUAL BATTERY UNDER SECTION 794.011(2), FLORIDA STATUTES (1977-1983), WHERE DEATH IS NOT A POSSIBLE PENALTY BECAUSE OF THE HOLDING IN BUFORD V....

...Having answered the certified question, we turn to the merits of this cause. Frederick A.R. Heuring was convicted and sentenced for the sexual battery of his stepdaughter, Melody, when she was between the ages of seven and twelve, in violation of sections 794.011(2) and (4)(e), Florida Statutes (1977-1983)....

...m of four and one-half years' incarceration, whereas if the same defendant commits three counts of the far more serious crime of forcible sexual battery involving penetration with an object, also a second-degree felony, on that child in violation of section 794.011(5), Florida Statutes (1989), he can be sentenced to no greater term, absent separate "ascertainable physical injury." I note that if victim-injury points were to be assessed for mere penetration on the sexual battery offenses — which...

...Explanation of amendment: This instruction begins on page 111b of the manual. This change (addition of "knowingly" in paragraph (2)) is based on White v. State, 539 So.2d 577 (Fla.5th DCA 1989). [Page A-44] *1222 SEXUAL BATTERY — VICTIM TWELVE YEARS OF AGE OR OLDER — CIRCUMSTANCES SPECIFIED — (Amended) F.S. 794.011(4) Before you can find the defendant guilty of sexual battery upon a person twelve years of age or older under specified circumstances, the State must prove the following four elements beyond a reasonable doubt: Elements 1....

...crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628. Explanation of amendments: The instruction begins on page 119 of the manual. The addition of "physically incapacitated" is based on 1989 amendments to F.S. 794.011....

...— 790.17 Selling arms to minors None Attempt by dealers — 790.18 Felons; possession of None Attempt (may be firearms unlawful; applicable when exception; penalty — concealed weapon is 790.23 charged) Carrying concealed firearm — 790.01(2) Carrying concealed weapon — 790.01(1) Sexual battery Battery — 784.03 Attempt — 794.011(2) Assault — 784.011 Aggravated assault — 784.021(1)(a) Aggravated battery — 784.045(1)(a) Sexual battery Battery — 784.03 Attempt — 794.011(3) Aggravated battery — 784.045(1)(a) Aggravated assault — 784.021(1)(a) Assault — 784.011 Sexual battery — 794.011(4) Sexual battery — 794.011(5) [Page A-78] *1256 CHARGED OFFENSES CATEGORY 1 CATEGORY 2 Sexual battery — Battery — 784.03 Attempt 794.011(4) Aggravated assault — 784.021(1)(a) Assault — 784.011 Sexual battery — 794.011(5) Sexual battery — 794.011(5) Battery — 784.03 Attempt Assault — 784.011 Unnatural and lascivious act — None Attempt 800.02 Exposure of sexual organs — None Unnatural and 800.03 lascivious act — 800.02 Lewd, lascivious, or indecent None Attempt assault or act upon...

...1982), and Kothman v. State, 442 So.2d 357 (Fla. 1st DCA 1983). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash the decision below. Tingle was convicted of sexual battery of a child (his daughter) under the age of eleven years under section 794.011(2), Florida Statutes (1985)....

...5th DCA 1998), and Spioch v. State, 742 So.2d 817 (Fla. 5th DCA 1999), review granted, 760 So.2d 948 (Fla.2000). See Kitts, 766 So.2d at 1069; Seagrave, 768 So.2d at 1123. In Reyes, the defendant was convicted of attempted sexual battery under sections 777.04 and 794.011(5), Florida Statutes (1995)....

...the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act; (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s....

...(creating the Florida Criminal Punishment Code, codified at sections 921.002-921.0026, Florida Statutes (1997)); see also § 921.0027, Fla. Stat. (1999). Section 921.0021, Florida Statutes (2000) provides for the same scoring guidelines for victim injury regarding sexual contact as provided by section 921.0011. [5] Section 794.011(1)(h), Florida Statutes (1997), the sexual battery statute, 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 o...

...penetration requires some entry into the relevant part, however slight." [8] In Smith v. State, 537 So.2d 982, 983-84 (Fla.1989), this Court detailed the history of the enactment of the sentencing guidelines. [9] Chapter 794 covered sexual battery (section 794.011), and carnal intercourse with an unmarried person under the age of eighteen (section 794.05)....

...judicating a person to be a *108 sexual predator under the Florida Sexual Predators Act. We disapprove the contrary holding in Payne. PROCEEDINGS TO DATE J.M., a fourteen-year-old juvenile, was charged as an adult with sexual battery in violation of section 794.011(2)(b), Florida Statutes (1999)....

...Section 985.233(4)(b), Florida Statutes (1999), allows juvenile sanctions for juveniles who have been transferred to adult court. [3] Combined, these statutes give the trial court discretion to impose juvenile sanctions even in cases where a juvenile was originally charged as an adult. [4] J.M. was charged under section 794.011(2)(b) and thus, under the sexual predator statute, if J.M....

...awfully and feloniously commit sexual battery upon BARBARA GRAMS, a person over the age of eleven (11) years, without the consent of the said BARBARA GRAMS, contrary to the form of the statute in such cases made and provided, to-wit: Florida Statute 794.011(3)....

...conviction when the indictment references a specific section of the criminal code which sufficiently details all the elements of the offense. McClamrock v. State, 374 So.2d 1076 (Fla. 2d DCA 1979). In this case the indictment specifically referenced section 794.011(3), Florida Statutes. By referencing section 794.011(3), which specifically defines all the elements of the offense, the indictment placed DuBoise on adequate notice of the crime being charged....

...s of appeal and this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. On September 14, 1984, Lerma entered a plea of guilty to sexual battery involving the use of force not likely to cause serious personal injury, a second degree felony. § 794.011(5), Fla....

...believed the victim was alive at the time the fire was set. Holton also challenges his conviction for sexual battery with great force. This challenge is based on two grounds. The first centers on Holton's belief that the use of the word "person" in section 794.011(3), Florida Statutes (1985), [5] contemplates that the victim of sexual battery must be alive....

...Holton argues, therefore, that because the evidence could not conclusively establish the bottle was inserted in the victim's anus before death but could only prove that insertion occurred prior to the fire, the evidence was insufficient to support his conviction under section 794.011....

...We disagree with Holton's assertion that the trial court erroneously denied his request to instruct the jury on unnatural and lascivious act, section 800.02, Florida Statutes (1985), as a lesser included offense of sexual battery with great force, section 794.011(3), Florida Statutes (1985). There was no error because section 800.02 is not a necessarily lesser included offense of section 794.011(3)....

...[4] When the trial court first suggested summarizing the deposition, both the state and the defendant objected. The defendant urged the trial court to grant a continuance. The state's objection centered on the inability to cross-examine the witness. [5] Section 794.011(3), Florida Statutes (1985), states in pertinent part: (3) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof ......

...events began, described the sexual abuse in the necessary detail. The jury obviously credited her testimony, because it convicted Purvis as charged on all three counts: (1) capital sexual battery on a child under twelve, in violation of Florida Statute § 794.011(2)(a); (2) sexual activity with a child twelve years or 4 older by a person in familial or custodial authority (the victim was the daughter of Purvis’ live-in girlfriend at the time), using digital penetration, in violation of § 794.011(8)(b); and (3) sexual activity with a child twelve years or older using penile union with her vagina, in violation of § 794.011(8)(b)....

...We have jurisdiction [1] and approve in part and quash in part the decision under review. Andre Henry Lamont and James Edward Brooks were both sentenced as habitual violent felony offenders after being found guilty of life felonies. Lamont was convicted of sexual battery with a firearm, a life felony pursuant to section 794.011(3), Florida Statutes (1989); burglary of an occupied dwelling with a firearm, a first-degree felony punishable by life imprisonment pursuant to section 810.02(2)(b), Florida Statutes (1989); kidnapping with a firearm, a first-degree f...

...hich are applicable. However, it appears Lamont was found to be a habitual violent felony offender, under section 775.084(4)(b), Florida Statutes (1989), during the sentencing hearing. [3] For example, one who commits sexual battery as defined under section 794.011(3), Florida Statutes (1989), "is guilty of a life felony, punishable as provided in s....

...that appellant become her guardian. Rife, 733 So.2d at 542. Both Rife and the victim testified that they had planned on marrying when the victim reached the legal age of eighteen. Rife was convicted of three counts of sexual battery in violation of section 794.011(8)(b), Florida Statutes (1997), which provides: (8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age who: ....

...(b) Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Id. (emphasis supplied); see Rife, 733 So.2d at 542. Section 794.011(1)(a), Florida Statutes (1997), provides that "`Consent' means intelligent, knowing, and voluntary consent and does not include coerced submission....

...See Hayes, 750 So.2d at 3. Because nothing in section 921.0016(4)(f) limits its application, the question becomes whether the criminal statutes under which Rife was convicted preclude a downward departure based on the willing participation of the minor victim. Section 794.011(8), the sexual battery statute that applies to defendants in a position of familial and custodial authority, provides that the "willingness or consent of the victim... is not a defense to prosecution under this subsection." (Emphasis supplied.) It is thus clear that the Legislature expressly precluded defendants from asserting the minor's consent as a defense to section 794.011(8)....

...This ignores the fundamental differences between whether particular conduct should be criminalized and the proper sentence to be imposed in a given case. See Bentley v. State, 411 So.2d 1361, 1363 (Fla. 5th DCA 1982). The very words employed by the Legislature in section 794.011(8), "[w]ithout regard to the willingness or consent of the victim," presume the ability of the minor to have willingly participated in or consented to the sexual activity....

...t even willing participation is sufficient for mitigating" a defendant's sentence. Id. We endorse these cautionary words, noting in particular that "consent" means "intelligent, knowing and voluntary consent and does not include coerced submission." § 794.011(1)(a)....

...Further, the fact that a young victim does not resist is not the same as willing participation. See Rife, 733 So.2d at 544. With these cautionary words, we answer the certified questions in the affirmative and approve the decision of the Fifth District. Accordingly, we conclude that by reading section 794.011(8)(b) in conjunction with section 921.0016(4)(f), trial judges are not prohibited as a matter of law from imposing a downward departure based on a finding that "[t]he victim was an initiator, willing participant, aggressor, or provoke...

...It seems ironic that consent is not a defense to the crime of sexual battery of a minor by one in familial or custodial authority but can be used to negate the punishment for the offense. As Judge Thompson pointed out in State v. Rife, 733 So.2d 541, 548 (Fla. 5th DCA 1999)(Thompson, J., dissenting): First, this statute, section 794.011(8)(b), and others like it are designed to further the state's compelling interest in protecting minors from sexual exploitation and sexual abuse from adults....

...The fact that a sixteen-year-old consented to a sexual relationship with a forty-nine year old man, who had taken on the responsibility of her care, is not mitigating. I would answer the certified question in the negative and hold consent by the minor is not a mitigating factor to sexual battery under section 794.011(8)(b)....

conviction for sexual battery ( Fla. Stat. § 794.011 (3) (1989) ); (ii) a 1989 conviction for

...99-188, § 2, at 1040-42; § 4, at 1050-51; § 5, at 1051; § 9, at 1056-62; § 10, at 1062-81; § 12, at 1081, Laws of Fla. Three sections in the act involve substantive criminal provisions. Section 7 creates the new offense of repeat sexual batterer, section 794.0115, Florida Statutes (1999), and section 8 amends section 794.011, Florida Statutes (1997), to conform to the new crime created in section 7....

...Harris had been convicted under the 1996 version of § 800.04(3), which provided: 800.04. Lewd, lascivious, or indecent assault or act upon or in presence of child A person who: ... (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years ....

...That version of the statute 2 The relevant statutory provision has since been rewritten and renumbered. See Fla. Stat. § 800.04(4) (2008). We cite here to the 1996 version of the statute, under which Harris was convicted. 6 also provided that “[u]nder § 794.011(1)(h), ‘Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ of another.’” Id....

...duct which simulate[s] that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act; (3) Commits an act define[d] as sexual battery under s. 794.011(1)([h]) upon any child under the age of 16 years; or (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery....

...INS, 55 8 The offense described in § 800.04(3) (1993) is the same as Harris’ 1996 offense of conviction at issue in the present case. Sexual battery was also defined the same way under the 1993 statute that was incorporated by reference in § 800.04(3). See Fla Stat. § 794.011(1)(h) (1993) (“The term ‘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 ....

...Adaway, who was thirty-six years old at the time, entered the bedroom, woke the victim, and told her to pull down her underwear. He then touched her vagina with his tongue. The State charged Adaway with sexual battery on a child under twelve in violation of section 794.011(2), Florida Statutes (1999), and with lewd or lascivious molestation of a child under twelve in violation of section 800.04(5)(b), Florida Statutes (1999)....

...We granted review to resolve the issue. Adaway, 871 So.2d at 871. II. ANALYSIS The statute defines sexual battery as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or *748 the anal or vaginal penetration of another by any other object." § 794.011(1)(h), Fla. Stat. (1999). When a person at least eighteen years old commits sexual battery on a person under twelve, the statute deems it "a capital felony, punishable as provided in ss. 775.082 and 921.141." § 794.011(2)(a), Fla....

...Following Buford, the maximum sentence for capital sexual battery became life imprisonment with the possibility of parole after twenty-five years. See Rusaw v. State, 451 So.2d 469, 470 (Fla.1984) ("Death is no longer permissible for the sexual battery described in subsection 794.011(2), but life imprisonment with a twenty-five-year minimum is.")....

...[4] *754 Florida's rape statute was amended in 1974. See ch. 74-121, Laws of Fla. The amendment changed the definition of sexual battery to "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." § 794.011(f), Fla. Stat. (Supp.1974). This is the same definition of sexual battery that is used in the current statute. See § 794.011(1)(h), Fla....

...ence upon a prison releasee reoffender who commits a life felony. [4] Gibson engaged in penile-vaginal union with his female victim. Adaway's conduct, oral-vaginal union, would not have constituted capital sexual battery before the 1974 amendment to section 794.011....

...of that requirement before he entered the plea does not render his plea involuntary. Partlow entered a "best interests" guilty plea to eight counts of the first-degree felony of sexual battery on a person within his familial or custodial authority (§ 794.011(8), Fla....

...Defendant contends that there was error in the failure of the information to allege an essential element of the offense of which he was convicted, to wit, his age, and in its failure to allege the specific acts defendant was accused of. However, the information tracked the language of section 794.011(2), Florida Statutes (1983), and sufficiently alleged the crime so that defendant was not prejudiced....

...As the Second District correctly determined, this argument confuses the unavailability of consent as a defense to lewd or lascivious battery under section 800.04 with the legal presumption that a child under twelve cannot consent to sexual activity under section 794.011, Florida Statutes (2002)....

...Accordingly, the court concluded that the purpose of the new statute was to criminalize consensual sexual intercourse with an unmarried female between the ages of ten and sixteen, not to repeal the rape law. Id. The presumption of incapacity to consent is still embodied in current statutes defining sexual offenses. Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of incapacity to consent ends at age eleven....

...Thus, because lack of consent is an element of sexual battery under subsection (2)(a), the offense always includes a charge of simple battery as a necessarily lesser-included offense, just as it does under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 794.011....

JAMES C. HILL, Circuit Judge: Petitioner Tolbert Dickson sought in the district court a writ of habeas corpus under 28 U.S.C. § 2254 . In 1975 Dickson was found guilty of sexual battery in violation of Florida Statutes § 794.011(3) 1 and sentenced to thirty years imprisonment....

...Having reviewed the trial record and viewing the evidence in the light most favorable to the prosecution, id. at 319 , 99 S.Ct. at 2789 , we conclude that a rational trier of fact could have found the essential elements of the crime of sexual battery as defined in Fla.Stat. § 794.011 beyond a reasonable doubt....

...battering Howard prior to the confrontation at the Louise Drive scene, where the murder occurred. Thomas's first claim is that the trial court committed reversible error by denying his motion for judgment of acquittal for the sexual battery charge. Section 794.011(3), Florida Statutes (1997), provides in pertinent part: A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony. . . . Sexual battery is defined as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another." § 794.011(1)(h), Fla. Stat. Consent is defined as "intelligent, knowing, and voluntary consent and does not include coerced submission. `Consent' shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender." § 794.011(1)(a), Fla....

...he sentencing judge may order the sentences to be served concurrently or consecutively. After the decision in Carpenter v. State, we decided this question in Ray v. State, 403 So.2d 956 (Fla. 1981), when we said: It is also not "lesser" because both section 794.011(5) and section 800.04 are second-degree felonies....

...In this case we answer a question certified by the Second District Court of Appeal to be of great public importance: May the crime of lewd or lascivious battery prohibited by section 800.04(4), Florida Statutes (2002), be a permissive lesser included offense of the crime of sexual battery charged pursuant to section 794.011(3), Florida Statutes (2002)? Williams v....

...For the reasons that follow, we answer the certified question in the affirmative and approve the decision of the Second District. FACTS AND PROCEDURAL HISTORY The State charged Williams by information with sexual battery with a deadly weapon or use of force likely to cause serious personal injury under section 794.011(3), Florida Statutes (2002)....

...Williams testified that the alleged victim had lied to him about her age. The State requested the trial court to instruct the jury on the lesser included offenses of lewd or lascivious battery under section 800.04(4)(a), sexual battery without physical force and violence likely to cause serious personal injury under section 794.011(5), and simple battery under section 784.03, Florida Statutes (2002)....

...f [V.G.]. Neither the victim's lack of chastity nor the victim's consent is a defense to the crime charged. The trial court also instructed the jury on sexual battery without physical force and violence likely to cause serious personal injury, under section 794.011(5), which is listed on the Schedule of Lesser Included Offenses as a necessarily lesser included offense of sexual battery under section 794.011(3), and further instructed on simple battery....

...ng with some frequency," the Second District certified the question of great public importance as to whether lewd or lascivious battery prohibited by section 800.04(4) can be a permissive lesser included offense of sexual battery charged pursuant to section 794.011(3)....

...ANALYSIS The analysis that follows first answers the certified question and explains why lewd or lascivious battery under section 800.04(4)(a) should be considered a permissive lesser included offense of sexual *598 battery with a deadly weapon or physical force likely to cause serious personal injury under section 794.011(3)....

...The deletion of the "unique language" in section 800.04 that made lewd or lascivious conduct and sexual battery "mutually exclusive," Hightower, 509 So.2d at 1079, created the possibility that one or more of the offenses specified in that statute could constitute lesser included offenses to sexual battery under section 794.011....

...In determining whether lewd or lascivious battery is a permissive lesser included offense of sexual battery with a deadly weapon or physical force likely to cause serious personal injury, the pertinent inquiry is whether the greater crime may be charged in a manner encompassing the lesser. Section 794.011(3) provides: (3) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious *599 personal injury commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115....

...The definitions of "sexual battery" in chapter 794 and "sexual activity" in chapter 800 are identical, both described in pertinent part 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." Compare § 794.011(1)(h), Fla....

...(2002) with § 800.04(1)(a), Fla. Stat. (2002). Further, sexual activity with a victim age twelve to fifteen violates both provisions. Accordingly, when the State alleges that the victim was between ages twelve and fifteen in a count charging a violation of section 794.011(3) (sexual battery as defined), that charge subsumes lewd or lascivious battery under section 800.04(4)(a) (sexual activity as defined)....

...Williams presented two grounds for his objection to the instruction at trial. First, he pointed to the absence of lewd or lascivious battery from the list of lesser included offenses for sexual battery with a deadly weapon or use of physical force likely to cause serious personal injury under section 794.011(3)....

...CONCLUSION Despite its current absence from the Schedule of Lesser Included Offenses for sexual battery with a deadly weapon or use of physical force likely to cause serious personal injury, lewd or lascivious battery under section 800.04(4)(a) is a permissive lesser included offense of a sexual battery charged under section 794.011(3)....

...nineteen years of age, by penetration of the vagina of said victim by the penis of said defendant without the consent of [victim], and in the process thereof did not use physical force and violence likely to cause serious personal injury, in violation of Section 794.011(5), Florida Statutes....

...unlawfully attempt to commit a sexual battery upon a person twelve years of age or older, to-wit:, [victim] ..., nineteen years of age, without the consent of said victim, and while the said victim was physically helpless to resist, in violation of Section 794.011(4)(a), Florida Statutes....

...vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other act.'" See Saavedra v. State, 576 So.2d 953, 956-57 (Fla. 1st DCA 1991); see also State v. Meshell, 2 So.3d 132 (Fla.2009); § 794.011(1)(h), Fla....

...ief for those with dual convictions based on subsections of the same statute. See Smith v. State, 19 So.3d 417 (Fla. 2d DCA 2009); Ruiz-Alegria v. State, 14 So.3d 1276 (Fla. 2d DCA 2009). In the instant case, appellant was charged with violations of section 794.011(5) and section 794.011(4)....

...GRIMES, Justice. We accepted jurisdiction of this case because of apparent conflict with State v. Lanier, 464 So.2d 1192 (Fla. 1985). Art. V, § 3(b)(3), Fla. Const. The defendant was charged with sexual battery of a six-year-old child, pursuant to section 794.011(2), Florida Statutes (1983)....

...the ages of twelve and sixteen and yet remain unpunished because of circumstances which would prevent conviction of the crime of sexual battery. Subsection (2) of section 800.04 as amended in 1984 utilized the sexual battery definition contained in section 794.011(1)(h)....

...It is so ordered. *1080 McDONALD, C.J., and OVERTON, EHRLICH, BARKETT and KOGAN, JJ., concur. SHAW, J., concurs specially in the result only with an opinion. SHAW, Justice, specially concurring in result only. Respondent was charged with violating section 794.011(2), Florida Statutes (1983), but convicted of violating section 800.04, Florida Statutes (1983), based on a lesser included offense theory. The statutory elements of section 800.04, as they existed in 1983, are not subsumed within those of section 794.011 and the offenses are separate....

...could be convicted of both offenses for the same conduct. In other words, inclusion of the phrase prohibits conviction of both offenses for the same conduct. It follows that, as amended, section 800.04 is now a necessarily lesser included offense of section 794.011, Florida Statutes (1985)....

...and separate convictions and sentences are prohibited. Thus, if the legislative phrase prohibits separate convictions and sentences, then it can only be that the legislature intended section 800.04 to become a necessarily lesser included offense of section 794.011....

...In addition to the amendment discussed above, section 5, chapter 84-86 also adds a new subsection (2) which was not previously contained in section 800.04, Florida Statutes (1983). Subsection (2) section 800.04 now provides: Any person who: ... . *1081 (2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; ......

...[3] As amended section 800.04 now reads: Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery. — Any person who: (1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner; (2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree, punishable as provided in s....

...by this section. [4] If uncertain of the proof, the cautious prosecutor will probably charge sexual battery and lewd and lascivious conduct in separate counts, recognizing, however, that only one conviction can be obtained for the same conduct. [*] Section 794.011, which establishes and defines the criminal offense of sexual battery, could be written more clearly....

...So.2d 693 (Fla. 1988). The First District Court of Appeal has extended "familial relationship" to include individuals who are not related by blood or marriage. In Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), the defendant was charged under section 794.011(4)(e), Florida Statutes (1983), with committing sexual battery on a fourteen-year-old female when the defendant was "in a position of familial, custodial, or official authority over the victim." The defendant was neither the natural f...

...hild would love, trust and obey her natural father. Under such circumstances, the state sufficiently proved that [the defendant] assumed a position of familial or custodial authority over the victim, and we consider that the legislature [in enacting section 794.011(4)(e)] has clearly manifested an intent to protect children who come under the dissolute influence of such persons, even in the absence of the showing of consanguinity or affinity....

...State, 509 So.2d 261 (Fla. 1987); Penny v. State, 140 Fla. 155, 191 So. 190 (1939); and Bean v. State, 469 So.2d 768 (Fla. 5th DCA 1984). [1] Gary Gould was charged with, among other things, [2] two counts of sexual battery on a victim physically helpless to resist. *1304 § 794.011(4)(a), Fla....

...[3] The charges stemmed from events that transpired on October 26, 1986, involving Gould's live-in girlfriend. At trial, the defense requested jury instructions on several lesser-included offenses of sexual battery on a physically helpless victim, including sexual battery under section 794.011(5), Florida Statutes (1985)....

...ple battery. The jury found Gould guilty on all charges, and the court entered judgment accordingly. Gould was sentenced to twenty-seven years' imprisonment. The district court affirmed Gould's convictions with the exception of his convictions under section 794.011(4)(a) for sexual battery on a physically helpless victim....

...The district court concluded that these convictions were not supported by the evidence. However, rather than vacating these convictions, the district court, under the purported authority of section 924.34, Florida Statutes (1985), directed the trial court to adjudicate Gould guilty of sexual battery under section 794.011(5) as a necessarily included lesser offense....

...offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. (Emphasis supplied.) Neither party argues that sexual battery under section 794.011 is an offense of a lesser statutory degree. Thus, the only question presented is whether section 794.011(5) sexual battery is "necessarily included" in the charged offense. For section 794.011(5) sexual battery to be a necessarily included lesser offense of the major offense of section 794.011(4)(a) sexual battery, all the elements of section 794.011(5) must also be elements of section 794.011(4)(a)....

...Where "the burden of proof of the major crime cannot be discharged[] without proving the lesser crime as an essential link in the chain of evidence," the lesser offense is a necessarily included lesser offense of the major offense. Brown v. State, 206 So.2d 377, 382 (Fla. 1968). The elements of section 794.011(4)(a) sexual battery are: (1) a sexual battery as defined by section 794.011(1)(h), Florida Statutes (1985), is committed; [5] (2) the act was not consented to; and (3) the victim was physically helpless to resist. *1305 The elements of section 794.011(5) sexual battery are: (1) a sexual battery as defined by section 794.011(h) is committed; (2) the act was not consented to; and (3) the use of physical force and violence by the perpetrator is not likely to cause serious personal injury. In this case, a section 794.011(4)(a) sexual battery can be proven without proving the actual use of any force....

...Because this subsection applies to victims who are asleep or unconscious, force would not necessarily be required to commit the sexual battery. Since the actual use of some physical force beyond that which is required to accomplish the "penetration" or "union" is an essential element of section 794.011(5), the crime defined by section 794.011(5) is not a necessarily included lesser offense of section 794.011(4)(a). Cf. Grange v. State, 371 So.2d 723 (Fla. 1st DCA 1979) (section 794.011(5) sexual battery is not a necessarily included lesser offense of sexual battery under section 794.011(4)(b) because the latter can be proven without the use of actual force); Harris v. State, 338 So.2d 880 (Fla. 3d DCA 1976) (section 794.011(5) sexual battery is not a necessarily included lesser offense of sexual battery under section 794.011(3) because the latter could be proven without proving the actual use of force, an essential element of section 794.011(5))....

...The opinion addressed only the certified question, which assumed for purposes of the question that the lesser offenses involved were necessarily included lesser offenses. [6] For the foregoing reasons, we quash that part of the district court decision directing the trial court to adjudicate Gould guilty of section 794.011(5) sexual battery....

...personal injury to the victim, and three counts of simple battery. Gould also challenges his conviction for kidnapping. This issue is not encompassed in the conflict question, and we do not address it. The remaining convictions are not at issue. [3] Section 794.011, Florida Statutes (1985), provides: (4) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, under any of the following circumstances is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084: (a) When the victim is physically helpless to resist. [4] Section 794.011(5), Florida Statutes (1985), provides: (5) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [5] Under section 794.011(1)(h), Florida Statutes (1985), "sexual battery" is defined 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; however, sexual battery does not include an act done for a bona fide medical purpose....

...n, and we approve Rusaw. A jury convicted Rusaw of sexual battery upon a person eleven years of age or younger by a person eighteen or older, and the trial court sentenced him to life imprisonment with no possibility of parole for twenty-five years. § 794.011(2), Fla....

...The district court affirmed the twenty-five-year minimum mandatory sentence. In Buford v. State, 403 So.2d 943 (Fla. 1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982), we held that a death sentence for committing the crime proscribed by subsection 794.011(2) is so grossly disproportionate and excessive as to be constitutionally prohibited....

...As this Court held in Donaldson, elimination of the death penalty from the statute does not of course destroy the entire statute. We have steadfastly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so. 265 So.2d at 502. In subsection 794.011(2) the legislature has denominated certain conduct to be a "capital" crime and has provided alternative penalties for that crime....

...We agree with the district court's conclusion that the legislature intended that the penalties set out in subsection 775.082(1) be fully applied to the extent that they are constitutionally permissible. Death is no longer permissible for the sexual battery described in subsection 794.011(2), but life imprisonment with a twenty-five-year minimum mandatory is....

...It is well settled that the legislature has the power to define crimes and to set punishments. The legislature, by setting sexual battery of a child apart from other sexual batteries, has obviously found that crime to be of special concern. Just because death is no longer a possible punishment for the crime described in subsection 794.011(2) does not mean that the alternative penalty suffers from any defect....

...The State argues that even if lewd and lascivious assault is not the analogue to Ohio's gross sexual imposition statute Dautel's Ohio conviction was properly scored as a second-degree felony. The State contends that gross sexual imposition is analogous to attempted sexual battery, which is a second-degree felony under section 794.011(4), Florida Statutes (1991)....

...io statute that Dautel was convicted of violating. Under Florida law, sexual battery is defined 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." § 794.011(1)(h), Fla....

...uant to its precedent the convictions for both Counts 1 and 3 violated double jeopardy, the district court noted that its ruling was inconsistent with various Florida district court of appeal rulings relating to the analogous sexual battery statute, section 794.011, Florida Statutes (2006)....

...rposes, are the same sex acts as those proscribed in the lewd and lascivious battery statute. Accordingly, in its decision, the Fifth District certified the following question to be of great public importance: ARE THE SEX ACTS PROSCRIBED BY SECTIONS 794.011 AND 800.04(4), FLORIDA STATUTES, PROPERLY VIEWED AS "DISTINCT CRIMINAL ACTS" FOR DOUBLE JEOPARDY PURPOSES, SO THAT A DEFENDANT CAN BE SEPARATELY CONVICTED FOR EACH DISTINCT ACT COMMITTED DURING A SINGLE CRIMINAL EPISODE? *134 Id....

...at 1171, 1174. Therefore, the Fifth District reversed Meshell's conviction as to Count 3. Id. However, the Fifth District noted that its ruling is inconsistent with well-settled precedent holding that sexual acts prohibited in the sexual battery statute, section 794.011, are distinct criminal acts so that separate convictions for each of the various acts do not violate double jeopardy....

...The defendant argued that both acts collectively constituted one violation of the statute and that, as a result, double jeopardy barred his two convictions. The Second District, however, disagreed. Id. Upon inspecting the definition of sexual battery in section 794.011, which defines anal and vaginal penetration separately, the Second District found: As the statute indicates, each act is a sexual battery of a separate character and type which logically requires different elements of proof....

...critical factors: The sexual battery statute may be violated in multiple, alternative ways, i.e., "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." § 794.011(1)(g) Fla....

...by any other object." § 800.04(1)(a), Fla. Stat. (2006). Likewise, "sexual battery" is defined 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." § 794.011(1)(h), Fla....

...ial elements of the crime. Additionally, we hold that the district court did not erroneously dismiss Price's direct appeal. FACTS AND PROCEDURAL HISTORY An information was filed against Herbert N. Price, which charged him with one count of violating section 794.011(4)(f), Florida Statutes (2000), sexual battery on a physically incapacitated person....

...xual battery by oral and/or vaginal petration [sic] by, or union with the sexual organ of [the victim] a person 12 years of age or older, without [the victim's] consent and while [the victim] was physically incapacitated, contrary to Florida Statute 794.011(4)(f)....

...The State charged alternative methods of committing sexual battery. Specifically, the State charged that Price "unlawfully commit[ted] sexual battery by oral and/or vaginal petration [sic] by, or union with the sexual organ of [the victim]." Under section 794.011, Florida Statutes (2006), the offense of sexual battery may be committed in several ways. Section 794.011 defines sexual battery 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." The instant information tracked the language of statute and adequately placed Price on notice that he was charged with sexual battery....

...such alternative bases for conviction. We approve the decision of the district court because we find that the information alleged the essential elements of the crime. The information charged the offense substantially in the language of the statute. Section 794.011(4)(f), Florida Statutes (2006), states: A person who commits sexual battery upon a person 12 years of age or older without that person's consent, under any of the following circumstances, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115: .......

...(f) When the victim is physically incapacitated. For this type of sexual battery, the essential elements are: (1) a person who commits sexual battery upon a person twelve years of age or older; (2) without the victim's consent; (3) when the victim is physically incapacitated. § 794.011(4)(f), Fla....

..."can be adjudicated delinquent for the lesser offense of trespass to a conveyance." G.C., 572 So.2d at 1382. Two and a half months later, this Court decided Gould v. State, 577 So.2d 1302 (Fla. 1991). In Gould, the adult defendant was found guilty of—among other things—sexual battery under section 794.011(4)(a), Florida Statutes (1985). The Second District Court of Appeal concluded that the conviction was not supported by the evidence. Instead of vacating the conviction, however, the court relied on section 924.34 to adjudicate Gould guilty of sexual battery under section 794.011(5), Florida Statutes (1985). This Court held that section 794.011(5) was not a necessarily lesser included offense, and quashed the part of the decision directing that Gould be adjudicated guilty on the basis of that statutory section....

...was established by force and that it was against the will of the victim. These cases are of little assistance to us, however, because they were decided under an old statute [2] no longer in effect at the time of the offense here. On October 1, 1974, section 794.011, Florida Statutes, went into effect, describing and proscribing the crime of sexual battery....

...y where the offense is committed without the victim's consent and where the offender uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury. [4] In the instant case, appellant was charged under section 794.011(5), Florida Statutes (1979), which provides: A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree......

...of resistance, and the degree of force manifested. It is only necessary that the resistance of the female be such as to make non-consent and actual resistance real, under the circumstances prevailing. Thomas v. State, 167 So.2d 309, 310 (Fla. 1964). Section 794.011(1)(h) of the new statute defines consent as the "intelligent, knowing and voluntary consent and shall not be construed to include coerced submission." Thus we hold that here, too, "consent" is a relative term to be viewed under the ci...

...The comment was made in closing argument after defendant had testified, so it could not be a comment on his right to remain silent. Appellant made no further objections to the comment. The judgment of conviction is AFFIRMED. COBB and FRANK D. UPCHURCH, Jr., JJ., concur. NOTES [1] § 794.011(5), Fla....

...Stat. (1979). [2] Prior to October 1, 1974, the rape statute, § 794.01, provided: "(2) whoever ravishes or carnally knows a person of the age of eleven years or more, by force and against his or her will, ... shall be guilty of a life felony... ." [3] Section 794.011, Florida Statutes, describes various degrees of the crime from a capital felony to a felony of the second degree, depending on the age of the victim and the degree of force used by the offender. [4] Serious personal injury is defined in the statute as "great bodily harm or pain, permanent disability or permanent disfigurement." § 794.011(1)(e)....

...[5] The legislative intent to divide "force" into various degrees and separate crimes is also demonstrated by provisions of the statute which require only the threat of force and the reasonable belief by the victim that the offender has the present ability to carry out the threat. § 794.011(4)(b)....

...to a United States citizen.” 2 Taylor plead guilty in June 1997 to soliciting sexual activity with a minor over a period from October 1996 through January 1997, in violation of Fla. Stat. Ann. § 794.011(8)(a)....

...Taylor contends 9 that he is eligible for § 212(c) relief because 1) his conviction did not constitute an aggravated felony; and 2) he was not charged with and found deportable as an aggravated felon. 1. Fla. Stat. § 794.011's “Soliciting Sexual Activity with a Child” Constitutes “Sexual Abuse of a Minor” under the INA INA § 101(a)(43)(A) defines “aggravated felony” to include “sexual abuse of a minor.” 8 U.S.C....

...of a minor” to mean a “perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” United States v. Padilla-Reyes, 247 F.3d 1158, 1163 (11th Cir. 2001). Here, Taylor was convicted of violating Fla Stat. § 794.011(8)(a) which prohibits a person “in a position of familial or custodial authority” from soliciting a minor to “engage in any act which would constitute sexual battery under paragraph (1)(h).” Paragraph (1)(h) defines sexual battery as “oral, anal or vaginal penetration by, or union with, the sexual organ of another or vaginal penetration of another by any other object.” Fla Stat. § 794.011(1)(h)....

...se. In Hogan we examined, in consonance with the state and federal constitutions, the legislature's authorized imposition of the death penalty for sexual battery of a child; not whether the prosecutor later decided to seek the death penalty. [1] See § 794.011(2), Fla....

...Stack, 326 So.2d 1 (Fla. 1974) (capital offenses reinstituted on the effective date of the statute implementing the death penalty). [2] In State v. Hogan, 451 So.2d 844 (Fla. 1984), we noted that the legislature's classification of the sexual battery proscribed by § 794.011(2), Fla....

...not involved. The sexual battery statute may be violated in multiple, alternative ways, i.e., *957 "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." § 794.011(1)(g) Fla....

...llant. His convictions and sentences were affirmed without comment. [2] Appellant was convicted for committing a sexual battery on a person 12 years of age or older, without consent, when the victim was physically helpless to resist, in violation of section 794.011(4)(a), Florida Statutes (1987)....

...Since we are not the sentencing court, we should not be adding it by inference or implication. In view of my serious concern regarding use of the reasonable doubt standard in reviewing departure from the guidelines, I join in certifying the question stated in the majority opinion. NOTES [1] Section 794.011(3), Florida Statutes, Sexual Battery: A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physic...

...Florida's rape statute was amended in 1974. See ch. 74-121, Laws of Fla. The amendment changed the definition of sexual battery to "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." § 794.011(f), Fla. Stat. (Supp.1974). This is the same definition of sexual battery that is used in the current statute. See § 794.011(1)(h), Fla....

...was life imprisonment with the possibility of parole after 25 years. See § 775.082(1), Fla. Stat. (1981). It is well established that life imprisonment with possibility of parole is a constitutional penalty for capital sexual battery, as defined in section 794.011(1)(h)....

...State, 403 So.2d 943 (Fla. 1981), the Florida Legislature never changed the wording of the sexual battery statute. Thus, upon reading the statute today it would appear that the death penalty could be imposed for those convicted of capital sexual battery. See § 794.011(2)(a), Fla....

...Based on Caylor’s statements and evidence recovered from the crime scene, Caylor was charged with first-degree murder (based on both premeditation and felony murder theories of the offense), see § 782.04(l)(a)l.-2., Fla. Stat. (2008), sexual battery involving great physical force, see § 794.011(3),- Fla....

...s an aggravating circumstance in its sentencing order. Sexual Battery In his second claim, Caylor argues that the trial court should have granted his motion for a judgment of acquittal on the offense of sexual battery involving great physical force. Section 794.011(3), Florida Statutes (2008), states: A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115....

...“Sexual battery” is defined 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; however, sexual battery does not include an act done for a bona fide medical purpose.” § 794.011(l)(h), Fla....

...“ ‘Consent’ means intelligent, *494 knowing, and voluntary consent and does not include coerced submission. ‘Consent’ shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.” § 794.011(l)(a), Fla....

...2)(b)2, Florida Statutes. In Case No. 81-5235, the single-count information charged that defendant, between August 1 and August 31, 1981, unlawfully committed a sexual battery upon T.M.P., a minor female over the age of eleven years, in violation of Section 794.011(4)(c), Florida Statutes. In Case No. 81-5236, the three-count information charged in Count One that defendant, on December 26, 1981, committed sexual battery upon S.N., a minor female over the age of eleven years, in violation of Section 794.011(4)(c), Florida Statutes; Count Two charged that defendant, on the same date, unlawfully produced a photograph depicting sexual conduct involving S.N., a minor female, in violation of Section 847.014(2)(a)1, Florida Statutes; and Count...

...Florida Statutes. In Case No. 81-5239, the three-count information charged in Count One that defendant, between July 1 and July 31, 1980, unlawfully committed a sexual battery upon S.D.R., a minor female over the age of eleven years, in violation of Section 794.011(4)(c), Florida Statutes; Count Two charged that defendant, between the same dates, unlawfully produced photographs depicting sexual conduct involving S.D.R., a minor female, in violation of Section 847.014(2)(a)1, Florida Statutes; an...

...sexual battery upon S.J., a person 12 years of age or older, by coercing the victim to submit by threatening to use force or violence likely to cause her serious personal injury, and by placing his penis in or on the victim's vagina, in violation of section 794.011(4), Florida Statutes (1997) (Count One); and that Wright, being a person 24 years of age or older, engaged in sexual activity with the same victim, S.J., a person 16 or 17 years of age, [1] by placing his penis in or upon the victim's vagina, in violation of section 794.05(1), Florida Statutes (1997) (Count Two)....

...idence." Id. Thus, we must determine whether the evidence presented at Baugh's trial to corroborate the child victim's out-of-court statements was sufficient to sustain his conviction. Baugh was charged with capital felony sexual battery pursuant to section 794.011(2)(a), Florida Statutes (2001)....

...In the instant case, the question is whether the other evidence presented at trial corroborated the child's recanted out-of-court statement and, if so, whether the evidence was sufficient to convict Baugh. Baugh was charged with a capital felony sexual battery pursuant to section 794.011(2)(a), Florida Statutes (2001)....

...State, 887 So.2d 1248, 1252 (Fla. 2004). [4] The statutory definition of sexual battery includes the "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." § 794.011(1)(h), Fla....

...Section 5: amends section 784.08 to provide a mandatory minimum sentence for aggravated assault on a person 65 years or older and for aggravated battery on a person 65 years or older. Section 6: amends references to section 775.084 found in section 790.235, in conformity with section 3. Section 7: creates section 794.0115, which defines "repeat sexual batterer," provides procedures for determining repeat sexual batterer status, and creates a mandatory minimum sentence for persons who qualify. Section 8: amends section 794.011, wherein the crime "sexual battery" is defined, to refer to new section 794.0115 in punishment provisions....

...Section 7 creates the new offense of "repeat sexual batterer" and establishes a mandatory minimum sentence for offenders meeting the criteria for that crime. Section 8 adds references to the new statute defining "repeat sexual batterer" to the sexual battery statute, section 794.011, wherein "sexual battery" is defined....

...that relate to and amend the substantive criminal law. We note that section 7 creates a new category of offender, a repeat sexual batterer; section 8 adds references to the new statute defining "repeat sexual batterer" to the sexual battery statute, section 794.011, wherein "sexual battery" is defined; and section 9 modifies the drug trafficking statute to allow prosecution on the basis of the number of cannabis plants which a person possesses, sells, or delivers, and modifies the weight benchmarks for prosecution....

...790.235, F.S., relating to prohibitions against, and penalties for, unlawful possession or other unlawful acts involving firearm, electric weapon or device, or concealed weapon by a violent career criminal; conforming cross references to changes made by the *1084 act; creating s. 794.0115, F.S.; defining "repeat sexual batterer"; providing within the definition a category of enumerated felony offenses in violation of s. 794.011, F.S., relating to sexual battery; requiring the court to sentence a defendant as a repeat sexual batterer and impose a 10-year mandatory minimum term of imprisonment under specified circumstances when the defendant is to be sentenced for committing or attempting to commit, any of the enumerated felony violations of s. 794.011, F.S., and the defendant has previously been convicted of committing or attempting to commit, any one of certain enumerated felony offenses involving sexual battery; providing penalties; providing procedures and criteria for court determination if the defendant is a repeat sexual batterer; providing for sentencing as a repeat sexual batterer; providing for construction; amending s. 794.011, F.S., to conform references to changes made by the act; amending s....

...al and vaginal penetration without the consent of the victim, at a time when appellant "was in a position of familial, custodial, or official authority to wit: step-father and used this authority to coerce ... [the victim] to submit, in violation of Section 794.011(4)(e), Florida Statutes......

...." Appellant argues that there was a fatal variance between the evidence adduced at trial and the allegations charged, in that during the dates when the offense was said to have occurred, appellant was not in any such position of familial, custodial or official authority, as required by Section 794.011(4)(e), Florida Statutes (1983), [1] because *1345 he did not at such time have the status of stepfather to the victim....

...n as he did not fall within any of the classes of relationships listed in the statute. He argues that the language of section 777.03 is therefore relevant in determining appellant's relationship to the victim, or lack thereof, in a prosecution under section 794.011(4)(e)....

...We decline to construe the two statutes in pari materia along the lines appellant urges us to adopt. We consider that it was the legislature's intent, in drafting the above language in section 777.03, to limit the defense to a very narrow class of persons. The same intent is not evidenced by the language employed in section 794.011(4)(e)....

...... ." Id. Custodial is defined as the adjective "of custody or custodians", and custody in turn is defined as "a guarding or keeping safe; care; protection; guardianship." Id. Obviously, if the legislature had intended to restrict the provisions of section 794.011(4)(e) to persons related to the victim by consanguinity (blood relationship), or affinity (marital relationship), it could have employed the same language used in section 777.03, but it did not. For example, the legislature might have provided in section 794.011(4)(e) — notwithstanding that the defendant had no blood or marital ties to the child — that if one stands in the position of in loco parentis to such person, meaning one who takes a child into his own home, and assumes the responsib...

...ip did not exist. Nevertheless, in view of what we find to be the legislature's intent behind the enactment of the statute on which the charge was based, we consider the language in the information to be mere surplusage and a nonessential element of Section 794.011(4)(e), Florida Statutes (1983)....

...the victim to submit. [2] Our conclusion that the legislature intended on a broad basis to protect minor children from the predatory influences of older persons who establish close family-type ties with them is further supported by the amendments to section 794.011(4)(e) by Chapter 84-86, Laws of Florida, which, in revising the statute as Section 794.041, Florida Statutes (Supp....

...Begley was charged in a four-count indictment with sexual battery upon his three-year-old daughter between the 7th and 22nd days of July, 1983. Count I charged intercourse, Count II cunnilingus, *72 Count III fellatio and Count IV manual manipulation of the anus, in violation of section 794.011(2) of the Florida Statutes....

...ansactions. Although the evidence does not specify the time of the various sexual batteries during the two-week period, they are three separate sexual acts requiring different elements of proof and, thus, constitute three separate crimes pursuant to section 794.011(f), Florida Statutes (1983)....

...State, 444 So.2d 492 (Fla. 2d DCA 1984). Appellant relies upon our earlier case of Wade v. State, 368 So.2d 76 (Fla. 4th DCA 1979), as requiring a holding that the three different types of sexual battery experienced here constitute only a single violation of section 794.011....

...State. Raul Leverett pled guilty to five counts of attempted sexual battery, two counts of lewd assault, and violation of probation. [4] The five counts of attempt represent reductions of the original charges, sexual battery upon a child under twelve. § 794.011(2), Fla....

...re 3.701(d)(14), remains consistent with the guideline recommendation, and the inclusion of points for victim injury continues to affect the length of sentence. [3] His motion lists these as sexual battery upon a person twelve years of age or older, § 794.011(5), Fla....

...State, 577 So.2d 1302, 1305 (Fla. 1991) (section 924.34 applies only to "`a lesser offense necessarily included in the offense charged'."); Shaara v. State, 581 So.2d 1339 (Fla. 1st DCA 1991) (where the defendant's convictions for sexual battery with a deadly weapon under section 794.011(3) necessarily determined the essential statutory elements of sexual battery by threats to use force likely to cause serious personal injury under section 794.011(4)(b), the appellate court has authority under section 924.34 to reverse the erroneous convictions and remand with directions to adjudicate the defendant guilty of the lesser offense on each of those counts)....

...Boatwright's argument that our decision in Enmund is only applicable to convictions of first-degree murder is unpersuasive. The statutes relied upon in the Enmund decision are equally applicable to convictions for capital sexual battery. See §§ 775.082(1), 794.011(2), Florida Statutes (1985)....

...(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Ch. 88-131, § 7, Laws of Fla. [4] Section 794.011(2), Florida Statutes (1985), provides: (2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony, punishable as provided in ss....

...sion in State v. Enmund, 476 So.2d 165 (Fla. 1985), was meant to apply to all capital felonies because first-degree murder is the only capital felony in Florida. His contention that sexual battery upon a child under the age of twelve in violation of section 794.011(2), Florida Statutes (1985), is no longer a capital felony for any purpose has been rejected by this Court....

...hild, this Court held that some of the procedural protections accorded defendants charged with a capital felony were not required when a defendant was charged with the capital felony of sexual battery of a person under the age of 12, in violation of section 794.011(2), Florida Statutes....

...As we noted in Batie, however, we still recognize the legislature's definition of this offense as "capital" in determining legislative intent for other consequences of this crime. Batie, 534 So.2d at 694. It is clear the legislature still deems this a capital offense for purposes of sentencing. See §§ 775.082, 794.011(2), Fla....

...Gen., and Jeanne Davis Schwartz, Asst. Atty. Gen., for appellee. BOYER, Chief Judge. Appellant was charged, tried, convicted, and sentenced for sexual battery by the use of physical force and violence not likely to cause serious personal injury. (F.S. 794.011(5)) His main arguments on appeal are that his statements made to interrogating officers should have been ruled inadmissible because of inadequate Miranda warnings, and that his several motions for mistrial based on prosecutorial misconduct...

...Public Defender, for appellant. Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellee. PER CURIAM. This is an appeal from a conviction for involuntary sexual battery of a child under eleven years of age, a capital offense pursuant to Section 794.011(2), Florida Statutes (Supp....

...The Court notes that of the aggravating circumstances designated by the legislature in Section 5 of the above referred to act, only Subsection (h) could be made to apply in this case. This may result from the later enactment of Fla. Stat. Section 794 [794.011] creating the offense of Involuntary Sexual Battery and the punishments designated when a child 11 years or younger is the victim....

...herefore the Court concurs with the Jury and is of the opinion that the death sentence is appropriate." (Emphasis supplied) [3] State v. Dixon, 283 So.2d 1 (Fla. 1973). [4] Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). [5] § 794.011(2), Fla....

...of the crime charged for which bail is sought.... [3] See, e.g., State v. Smith, 547 So.2d 613 (Fla. 1989). [4] See ( Joseph) Thompson v. State, 650 So.2d 969 (Fla.1994) (involving sexual battery on a physically incapacitated victim, in violation of section 794.011(4)(f), Florida Statutes (1991), and sexual activity while in custodial authority of a child, in violation of section 794.041(2)(b), Florida Statutes (1991)); Sirmons v....

...With this analysis there is no requirement to apply section 39.111, which simply does not fit the prosecution of a person in excess of age nineteen. NOTES [1] Sexual battery by a person under eighteen upon a child under twelve is a life felony punishable by life imprisonment. § 794.011(2), Fla....

...Nonetheless, we are persuaded that neither ignorance, misrepresentation, nor belief that the victim is sixteen years or older is available to a defendant charged with the violation of section 800.04(2). That section renders a person who "[c]ommits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years," guilty of a second degree felony....

...The state meets its burden in a matter of this kind through proof that the act was committed with a person under the age of sixteen. The offense identified in section 800.04(2) acquires its substantive components from the definition of sexual battery found in section 794.011(1)(h) which, in relevant part, states that: "The term `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...." In f...

...ain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense. Because of the apparent dependence of section 800.04(2) upon section 794.011(1)(h), it is our view that the legislature intended section 794.021 to be operative in the implementation of section 800.04(2)....

...We hold that time is not a substantive part of a charging document and that our present discovery rules eliminate the need for the specificity required by prior case law. The relevant facts reflect that a grand jury indicted Raymond Harold Tingley on four counts of sexual battery of a minor, contrary to the provisions of section 794.011(2), Florida Statutes (1983)....

...hdraw his guilty plea. The decision of the district court, as amplified in the motion for rehearing, is approved. It is so ordered. ADKINS, BOYD, OVERTON and EHRLICH, JJ., concur. ALDERMAN, C.J., dissents. NOTES [1] § 810.02, Fla. Stat. (1979). [2] § 794.011(3), Fla....

...First, the defendant contends that the trial court erred in denying the defendant's motion for judgment of acquittal as to the sexual battery count on the ground that the state failed to establish that the victim was eleven years of age or younger as required by Section 794.011(2), Florida Statutes (1983)....

...Statutes (1987). [4] Randolph possesses an atypical personality disorder and expressed shame and remorse for his conduct. [5] Defense counsel conceded that juror Hampton vacillated between her ability and inability to vote for the death penalty. [6] § 794.011(3), Fla. Stat. (1987). [7] § 794.011(4)(a), Fla....

...V, § 3(b)(3), Fla. Const. For the following reasons, we approve the decision in the instant case and disapprove the Fourth District Court of Appeal's decision in Jesus. FACTS In April 2000, Bruce Glover was charged with capital sexual battery under section 794.011(2)(a), Florida Statutes (1999)....

...We resolve the conflict between the opinions of the Fifth District in this case and the Third District in Baker and the *238 opinion of the Fourth District in Jesus by approving the Fifth District and Third District's holding that the age of the defendant is an element of capital sexual battery under section 794.011(2)....

...DAUKSCH, J. This is an appeal from a conviction for capital sexual battery. The evidence is that appellant raped his daughter numerous times and was charged and convicted of this one rape. Because of his age and her age he was sentenced to life in prison. § 794.011(2)(a), Fla.Stat....

...First, the defendant argues that he was entitled to a judgment of acquittal because the evidence did not establish a sexual battery. In order to establish a sexual battery, the state is not required to prove a rape or penetration. "Sexual battery" includes "oral ... union with the sexual organ of another...." § 794.011(1)(h), Fla....

...5th DCA 1995), and King v. State, 642 So.2d 649 (Fla. 2d DCA 1994). The conflict issue is whether lewd and lascivious conduct as set forth in section 800.04, Florida Statutes (1997), is a permissive lesser included offense of capital sexual battery [1] as set forth in section 794.011(2)(a), Florida Statutes (1997)....

...itled to a jury instruction on the offense. [2] By amended information filed October 13, 2000, Travis Welsh was charged with one count of capital sexual battery upon a person less than twelve years of age, by oral-vaginal contact in contravention of section 794.011(2)(a), Florida Statutes....

...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, 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....

...and separate convictions and sentences are prohibited. Thus, if the legislative phrase prohibits separate convictions and sentences, then it can only be that the legislature intended section 800.04 to become a necessarily included lesser offense of section 794.011....

...The amended section read: 800.04 Lewd, lascivious, or indecent assault or act upon or in presence of a child; sexual battery.—Any person who: (1) Handles, fondles, or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner; *473 (2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree.......

...ser included offense of capital sexual battery. Accordingly, I concur with the majority's approval of the First District opinion. ANSTEAD, C.J., concurs. NOTES [1] The crime of sexual battery on a child less than twelve set forth in Florida Statutes section 794.011(2)(a) is referred to as "capital" sexual battery because the crime historically has been statutorily punishable by death....

...In other words, the indictment must allege all of the statutory elements of the permissive lesser included offense, and there must be some evidence adduced at trial establishing all of the elements of the permissive lesser. See Jones v. State, 666 So.2d 960, 963 (Fla. 3d DCA 1996). [3] Section 794.011, entitled "Sexual battery," provides in pertinent part: (1) As used in the chapter: .......

...(2)(a) A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141. § 794.011, Fla....

...the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act; (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree.... § 800.04, Fla. Stat. (1997) (emphasis supplied). [5] Section 800.04 was substantially amended in 1999. The statute both eliminates the cross-reference to section 794.011(1)(h) and the language "without committing the crime of sexual battery." We express no opinion as to the effect of these statutory changes on whether lewd and lascivious conduct is a necessary or permissive lesser included offense of capital sexual battery....

...ual battery irrespective of consent and prior unchastity, I would conclude that one may be convicted of violating any subsection of section 800.04 even though the acts constituting fondling ... may also satisfy the definition of sexual battery under section 794.011(1)(h).......

...We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida. Appellant was charged by indictment with the crime of involuntary sexual battery in that he did unlawfully commit a sexual battery upon an 8-year-old boy by oral union with the sexual organ of the young boy contrary to Section 794.011(2), Florida Statutes....

...der the provisions of Section 917.28, Florida Statutes. On appeal to this Court, appellant challenges the judgment and sentence of the trial court on the grounds that the evidence was insufficient as a matter of law to prove a "union" as required by Section 794.011, Florida Statutes, and that Section 775.082(1), Florida Statutes, which carries a *470 minimum of 25 years imprisonment prior to eligibility for parole constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States, and Article I, Section 17, of the Constitution of Florida. Section 794.011(2), Florida Statutes, provides: "A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss. 775.082 and 921.141. If the offender is under the age of 18, that person shall be guilty of a life felony, punishable as provided in § 775.082, § 775.083, or § 775.084." "Sexual battery" is defined in Section 794.011(1)(f), Florida Statutes to mean "....

...There was a "union" by appellant's mouth (oral) with the young boy's penis. Appellant attacks the constitutionality of the minimum 25 years imprisonment prior to eligibility for parole found in Section 775.082(1), Florida Statutes, as it applies to him sub judice by Section 794.011(2), Florida Statutes, on the basis that said punishment is cruel and unusual in light of the act committed by him....

...of 30 years to be excessive in terms of constitutional prohibitions." We find that the imposition of a life sentence with a minimum 25 years imprisonment prior to eligibility for parole as required by legislative enactment — Section 775.082(1) and Section 794.011(2), Florida Statutes, upon appellant does not amount to cruel and unusual punishment....

...Appellant raises a variety of issues on appeal, none of which merit reversal. On October 11, 1984, appellant was charged with committing a sexual battery upon M.D., a nine-year-old, between July 1, 1983, and September 30, 1983, by penetrating M.D.'s mouth with his penis, in violation of section 794.011(2), Florida Statutes (1983)....

...estion. The trial court's determination to allow the jurors to remain on the panel is entitled to great deference upon review and is affirmed. Appellant next argues that the court erred in denying appellant's motion for judgment of acquittal because section 794.011(1)(f), Florida Statutes (1983), does not include within its literal terms the sex act that took place in this case. Appellant argues that the victim, M.D., did not have a "sexual organ" penetrated by appellant, but only had his mouth penetrated. Section 794.011(1)(f) defines "sexual battery" as follows: Oral, anal, or vaginal penetration by or union with the sexual organ of another *628 or the anal or vaginal penetration of another by any other object....

...5th DCA 1985), the fifth district interpreted the phrase "except capital felonies" in the context of the sentencing guidelines legislation which provided that the guidelines would be applicable to all felonies "except capital felonies" committed on or after October 1, 1983. The court determined that sexual battery under section 794.011(2) remained a capital offense and would be classified as a capital felony under the sentencing guidelines law....

..."unambiguous" in its opinion construing the pivotal statute. Also, section 775.084(1)(b) designates specific offenses that will trigger an enhancement. Each of these offenses is defined by Florida law. See, e.g., Fla. Stat. § 806.01 (defining arson); Fla. Stat. § 794.011 (defining sexual battery); Fla....

...Public Defender, Tallahassee, for appellant. Jim Smith, Atty. Gen., Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee. NIMMONS, Judge. The appellant was convicted of the life felony of sexual battery with the use of a deadly weapon under Section 794.011(3), Florida Statutes, and sentenced to life imprisonment pursuant to the recommended sentence under the sentencing guidelines....

...Edwards, Asst. Public Defender, Daytona Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee. ORFINGER, Chief Judge. Based on a plea of guilty to a charge of sexual battery in violation of section 794.011(3), Florida Statutes (1979), appellant was adjudged guilty and sentenced to incarceration for seventy-five years....

...Therefore, we reverse the order of probation and remand with directions that the words "at your own expense" be deleted from Condition (12). We note also that the judgment, while correctly identifying the "crime" of which appellant was convicted as "attempted sexual battery," includes under "offense statute number(s)" only Section 794.011(2), Florida Statutes (1987) (capital sexual battery), omitting reference to the appropriate portion of the attempt statute, Section 777.04(4)(a)....

...Public Defender, Daytona Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee. COWART, Judge. Appellant was charged in a two count indictment with first degree burglary (§ 810.02, Fla. Stat. (1979)) and sexual battery (§ 794.011, Fla....

...Consequently, to prove a first degree burglary the State must prove a defendant (1) entered or remained in a (2) structure or a conveyance with (3) the intent to commit an offense and that (4) during the course of the offense the offender (5) made an assault upon any person. Correspondingly, section 794.011, Florida Statutes (1979), proscribes the offense of sexual battery and states, in part: (3) A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony, punishable as provided in § 775.082, § 775.083, or § 775.084. Additionally, section 794.011(1)(f) defines sexual battery as: (f) "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 shall not include acts done for bona fide medical purposes....

...s found on the victim were indistinguishable from samples taken from appellant. [2] See, e.g., Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Ianelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). [3] Section 794.011(1)(f) defines sexual battery in terms which include additional activities not relevant to the instant discussion....

...phisticated." We agree. Indeed, the error lies in the faulty premise underlying the trial court's finding that the "very nature of the crime" suggests that it was committed in an unsophisticated manner. Staffney was charged with sexual battery under section 794.011(5), Florida Statutes (2001), which defines the offense as the commission of "sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury...." Section 794.011(1)(h), Florida Statutes (2001), defines the term "sexual battery" 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; however, sexual...

...Battery, as provided in Florida law, involves actually and intentionally touching or striking another person against his or her will or intentionally causing bodily harm to another. § 784.03, Fla. Stat. (1989). Sexual battery involves "oral, anal, or vaginal penetration." § 794.011(1)(h), Fla....

...Because of the nature of the crime and the sentence imposed, we submit the following facts: In January 2004, Subido committed sexual battery while he was in a position of familial authority and while his stepdaughter was asleep, committing a first-degree felony in violation of sections 794.011(4)(a) and (8)(b), Florida Statutes (2003)....

...e of his actions. Id. at 510-11. The appellate court disagreed with the trial court's assertion that the "very nature of the crime" showed that it was unsophisticated. Id. at 512. The very nature of the crime was sexual battery, precisely defined in section 794.011....

...Subido argued, and the trial court agreed, that Subido could have done more than merely digitally penetrate his stepdaughter. However, the legislature has not seen fit to make Subido's offense a lesser crime. The definition of sexual battery clearly includes digital penetration. § 794.011(1)(h)....

...s for mitigation, notwithstanding the court's "sense of apportionality" or Subido's failure to get his stepdaughter drunk before committing sexual battery. The statute provides that sexual battery on a sleeping person is a first-degree felony. See §§ 794.011(1)(e); 794.011(4)(a). Similarly, the legislature intended to punish those in positions of familial or custodial authority who commit sexual battery. [3] §§ 794.011(8)(b); 794.011(1)(h)....

...ion for the court to impose a downward departure sentence. NOTES [1] "`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 . . . ." § 794.011(1)(h). "`Physically helpless' means unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act." § 794.011(1)(e). A person who commits sexual battery upon a person 12 years of age or older without that person's consent, when the victim is physically helpless to resist, commits a first-degree felony. § 794.011(4)(a). Regardless of consent, a person in a position of familial or custodial authority who engages in an act that constitutes "sexual battery" with a child between 12 and 18 commits a first-degree felony. § 794.011(8)(b)....

...hich the trial court failed to do here. Upon remand, these statutory requirements must be met. The judgments of conviction are reversed and the cause is remanded for a new trial. REVERSED AND REMANDED. SHARP, C.J., and DAUKSCH, J., concur. NOTES [1] § 794.011(2), Fla....

...Although the victim was interviewed at the time of the alleged offense, an information was not filed until February 1996. The State charged Mr. Richards with one count of capital sexual battery on a child less than twelve years of age in violation of section 794.011(2), Florida Statutes (1991)....

...THE LAW As defined by statute, "[t]he term `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." § 794.011(1)(h), Fla....

...the charged offense. [3] If the legislature truly wishes to make penile contact with the vulva or clitoris punishable by life imprisonment without the possibility of parole, it need only add the word "penile" to the phrase "oral, anal or vaginal" in section 794.011(1)(h), Florida Statutes (1991)....

...The statute defined sexual battery 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; however, sexual battery does not include an act done for a bona fide medical purpose." § 794.011(1)(h), Fla....

...(b) A person less than 18 years of age who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 794.011(2), Fla....

...nt, set out in the same section of the statute creating the offense, should also be." Glover v. State, 815 So.2d 698, 699 (Fla. 5th DCA 2002). We agreed. Glover, 863 So.2d at 238. The State argues that the sexual battery statute is different because section 794.011(1)(h) does not make sexual battery a crime; only later subsections do so....

...As we explained above, the definition of lewd or lascivious conduct does not make such conduct a crime. See § 800.04(6)(a), Fla. Stat. (2001). Paragraph (a) defines lewd or lascivious conduct for purposes of paragraphs (b) and (c). Similarly, paragraph (1)(h) of section 794.011 defines "sexual battery" for purposes of subsection (2)(a) and (b), which then criminalize the conduct and designate capital and life felonies depending on the defendant's and the victim's ages....

...---------- Comment See Seese v. State, 955 So.2d 1145 (Fla. 4th DCA 2007). This instruction was adopted in 1995 [657 So.2d 1152] and was amended in 2007 [953 So.2d 495], and 2008. 11.2 SEXUAL BATTERY — VICTIM 12 YEARS OF AGE OR OLDER — GREAT FORCE § 794.011(3), Fla....

...crime was committed. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628. Lesser Included Offenses ----------------------------------------------------------------------- SEXUAL BATTERY — VICTIM OVER 12 — WEAPON OR FORCE — 794.011(3) ----------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ----------------------------------------------------------------------- Sexual battery 794.011(5) 11.4 ----------------------------------------------------------------------- Battery 784.03 8.3 ----------------------------------------------------------------------- Sexual battery 794.011(4) 11.3 ----------------------------------------------------------------------- Attempt 777.04(1) 5.1 ----------------------------------------------------------------------- Lewd or lascivious battery 800.04(4) 11.10 -------------------------...

...--------------------------------- Aggravated assault 784.021(1)(a) 8.2 ----------------------------------------------------------------------- Assault 784.011 8.1 ----------------------------------------------------------------------- Sexual battery 794.011(4) 11.3 ----------------------------------------------------------------------- Comment This instruction was adopted in 1981 and was amended in 1987 [508 So.2d 1221], 1995 [657 So.2d 1152], and 2003 [850 So.2d 1272], and 2008. 11.3 SEXUAL BATTERY — VICTIM 12 YEARS OF AGE OR OLDER — SPECIFIED CIRCUMSTANCES SPECIFIED § 794.011(4), Fla....

...ommitted. See Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986), at pages 627, 628. Lesser Included Offenses ----------------------------------------------------------------------------- SEXUAL BATTERY — VICTIM OVER 12 — SPECIAL CIRCUMSTANCES — 794.011(4) ----------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. ----------------------------------------------------------------------------- Sexual battery 794.011(5) 11.4 ----------------------------------------------------------------------------- Battery 784.03 8.3 ----------------------------------------------------------------------------- Lewd or lascivious battery 800.04(4) 11.10 ----------------...

...This instruction was adopted in 1981 and was amended in 1987 [508 So.2d 1221], 1992 [603 So.2d 1175], 1995 [657 So.2d 1152], and 2003 [850 So.2d 1272], and 2008. 11.6 SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER BUT UNDER 18 YEARS OF AGE BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY § 794.011(8)(b), Fla....

..."Union" means contact. Lesser Included Offenses --------------------------------------------------------------------------- SEXUAL BATTERY UPON CHILD 12 YEARS OF AGE OR OLDER BUT UNDER 18 YEARS OF AGE BY PERSON IN FAMILIAL OR CUSTODIAL AUTHORITY & 794.011(8)(B) --------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA....

...The court admitted into evidence certified copies of the charging information on two counts of sexual activity with a child and one count of lewd assault on a child and the judgment showing that appellant was found guilty on each count. These were acts in violation of sections 794.011 and 800.04, Florida Statutes (1993)....

...with a human victim." Johnson v. State, 720 So.2d 232, 237 (Fla. 1998) (quoting Lewis, 398 So.2d at 438); *1264 see Mahn v. State, 714 So.2d 391, 399 (Fla.1998). The record reflects that two counts of sexual activity with a child were predicated on section 794.011(8)(b), Florida Statutes (1993), of the sexual battery statute, which states: (8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of...

..... and that it was never intended that sexual battery offense ... require any force or violence beyond the force and violence that is inherent in the accomplishment of "penetration" or "union." (Emphasis added.) We conclude that both the language of section 794.011(8)(b) and section 794.005 indicate the Legislature's intent to treat a violation of section 794.011 as implicitly involving violence or the threat of violence....

...d victim. Although the act of placing his mouth into the victim's vagina would involve penetration, the act of union with the child's vagina would not involve penetration. Under the pertinent statute, "union" and "penetration" are distinct concepts. § 794.011(1)(h), Fla....

...r resentencing consistent with this opinion. His sentence for count I is affirmed. Convictions and designation affirmed; sentences affirmed in part and reversed in part; case remanded for resentencing. DAVIS and SILBERMAN, JJ., Concur. NOTES [1] See § 794.011(2)(a), Fla. Stat. (1997). [2] See § 794.011(8)(b)....

...ing when the alleged violation occurred prior to entry of a written order of probation. We affirm for the reasons discussed below. *73 In August 1994, defendant was charged with one count of sexual battery on a person less than 12 years of age under section 794.011(2), Florida Statutes (1994)....

...ce and against her will, or unlawfully or carnally knows and abuses a female child under the age of 10 years, shall be punished by death... . A version of this statute was in effect in Florida until the sexual battery statute was passed in 1975. [4] Section 794.011 makes it a felony of varying degrees of seriousness to commit a sexual battery on a person under the age of twelve, for which consent is no defense....

...It prohibits a variety of lewd and lascivious conduct with a child under the age of sixteen, or in the child's presence, including actual sexual intercourse, as occurred in these cases. Violations of section 800.04 are second degree felonies rather than possibly first degree or life felonies pursuant to section 794.011....

...n 800.04. Since all of the children involved in these cases are over the age of twelve, apparently were not previously chaste, and they consented to the sexual intercourse, charges had to be brought under section 800.04 rather than section 794.05 or 794.011....

...and control over the Plaintiff." We do not believe that a sexual battery has been committed when a person of normal intelligence submits to a sexual relationship due to the "emotional attachment" to another person. Although consent is not absolute, section 794.011 makes it clear that the legislature intended that if it is present, consent will bar criminal prosecution....

...ally helpless, is meritorious. It is even more clear than it was in Davis v. State, 538 So.2d 515 (Fla. 2d DCA), rev. denied, 544 So.2d 201 (Fla. 1989), that the victim in this case did not meet the statutory definition of "physically helpless." See § 794.011(1)(e), Fla....

...Tracy was bound, but the evidence shows that she repeatedly communicated her unwillingness to the sexual batteries. Therefore, the convictions under counts two and three must be reversed. The defense requested a jury instruction on the category two lesser included offense of sexual battery under section 794.011(5), Florida Statutes (1985), to which the state objected....

...r a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense. (emphasis supplied). Section 794.011 is entitled "Sexual Battery." Subsection (1)(h) defines sexual battery as "oral, anal or vaginal penetration by, or union with, the sexual organ of another or the anal or the vaginal penetration of another by any other object." In subsections (2) through (5) the basic definition of sexual battery must be proved in each case. Then, depending upon the facts comprising the sexual battery, the crime can be a life felony, a first degree felony, or a second degree felony. Section 794.011(5) provides that "[a] person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury is guilty of a felony of the second degree." Appellant agrees that the evidence supported a simple battery conviction. The same evidence is sufficient to show physical force and violence not likely to cause serious personal injury under section 794.011(5)....

...Section 924.34 permits the appellate court to look directly to the evidence and make its own independent evaluation of that evidence. Having done so, we hold that the evidence establishes appellant's guilt, beyond a reasonable doubt, of sexual battery under section 794.011(5) as to counts two and three of the information....

...ent to the bathroom made those crimes much easier to commit, and thus the kidnapping conviction must stand. Based on the foregoing, the convictions under counts two and three are reversed with directions to enter convictions for sexual battery under section 794.011(5), Florida Statutes (1985)....

...§ 924.34, Fla. Stat. (1987). The convictions on all other counts are affirmed and the case remanded for resentencing. Affirmed in part, reversed in part, and remanded. CAMPBELL, C.J., and RYDER, J., concur. NOTES [1] § 787.01, Fla. Stat. (1985). [2] § 794.011(3), Fla. Stat. (1985). [3] § 794.011(4)(b), Fla. Stat. (1985). [4] § 794.011(4)(a), Fla....

...We conclude that only one of his three claims presents a prima facie showing of entitlement to relief. Accordingly, we reverse and remand for further proceedings as to that one claim. Jackson was tried and convicted of one count of sexual battery under section 794.011(3), Florida Statutes (1989)....

...Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee. BOARDMAN, Acting Chief Judge. Appellant Carl Duke appeals from judgments and sentences entered after jury verdicts finding him guilty of two counts of attempted sexual battery under section 794.011(2), Florida Statutes (1981)....

...Appellant first alleges that the trial court committed reversible error in sentencing him to thirty years on each count. In support of his position, he relies on the authority of our supreme court in Buford v. State, 403 So.2d 943 (Fla. 1981), wherein that court announced that a violation of section 794.011(2) is no longer a capital crime. Appellant contends that inasmuch as a conviction under 794.011(2) is no longer a capital felony, it drops one category to life felony....

...§§ 777.04(4)(b) and 775.082(3)(c), Fla. Stat. As further support for his position, appellant directs us to the holding of our sister court in Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983). There, as here, the defendant was charged with sexual battery under section 794.011(2), Florida Statutes....

...The court also held, as appellant argues, that sexual battery is a life felony, with the attempt to commit carrying a maximum sentence of fifteen years. What appellant apparently fails to recognize is this court's opinion in Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983) [1] that held even though sexual battery under section 794.011(2) is not a capital crime in the sense that it may result in the imposition of the death penalty, the punishment for that crime must still be imposed under section 775.082(1) to its constitutional limits. This means that one convicted under section 794.011(2) must be automatically "punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole." Section 775.082(1)....

...l if there is any reasonable basis for doing so and of course this clearly exists in these circumstances. 265 So.2d at 502-03. Because of the foregoing language in Donaldson, we expressly disagreed with the premise in Hogan that sexual battery under 794.011(2) is a life felony for all purposes including sentencing....

...tatute and therefore the trial court erred in sentencing him for both offenses. Specifically, appellant submits that the elapsed period of time (a matter of seconds) was insufficient to separate one attempted penetration from the other. We disagree. Section 794.011(1)(f) defines sexual battery as follows: "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 shall not include acts done for bona fide medical purposes....

...HARRIS, J., concurring in part, dissenting in part. I concur in vacating the sentence for a Heggs resentencing; I dissent from the notion that the judge is free to decide the issue of penetration when the defendant is charged with sexual battery under section 794.011....

...I read Apprendi's remand more broadly than the majority. A unanimous Apprendi court tells us that if the sentencing fact is an element of the offense, it must be decided by the jury to the exclusion of any doubt. Since penetration is a part of the definition of sexual battery [section 794.011(1)(h) ], it is difficult to envision it as anything but an element of the offense....

...lify as a victim injury under the relevant rule of criminal procedure. Karchesky v. State, 591 So.2d 930 (Fla.1992). [2] On the other hand, this case also presents a complication that Judge Harris has discussed at length. In Florida, sexual battery, section 794.011(1)(h), Florida Statutes, consists either of oral, anal or vaginal penetration or union with the sexual organ of another....

...Butterworth, Attorney General, and L. Michael Billmeier, Assistant Attorney General, Tallahassee, for Appellee. ALLEN, Judge. In this direct criminal appeal, the appellant challenges as excessive the sentence imposed by the trial court for sexual battery in violation of section 794.011(5), Florida Statutes (1995), one of four crimes of which the appellant was convicted and for which he was sentenced. Section 794.011(5) sexual battery is a second degree felony punishable by a term of imprisonment not exceeding fifteen years....

...Admission of Child Victim's Out-of-Court Statements The state alleged that appellant had committed a sexual battery and a lewd assault upon the victim, who at the time of the offenses was 12 years old and "mentally defective," as that term is defined in section 794.011(1)(b), Florida Statutes (1993)....

...l. II. Sufficiency of Evidence to Establish Victim Was "Mentally Defective" Appellant also argues that the evidence presented at trial was legally insufficient to establish that the alleged victim was "mentally defective," as that term is defined in section 794.011(1)(b), Florida Statutes (1993), on the date of the alleged sexual battery....

...2141, 2147, 57 L.Ed.2d 1, 9 (1978) ("[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding"). The state charged appellant with sexual battery upon a "mentally defective" victim, in violation of section 794.011(4)(e), Florida Statutes (1993). "[S]exual battery upon a person 12 years of age or older, without that person's consent," and without the "use [of] physical force and violence likely to cause serious personal injury," is a second-degree felony. § 794.011(5), Fla....

...(1993). "[S]exual battery upon a person 12 years of age or older [,] without that person's consent,... [w]hen the victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact," is a first-degree felony. § 794.011(4)(e), Fla. Stat. (1993). The former is a lesser-included offense of the latter. § 794.011(6), Fla. Stat. (1993). The term "mentally defective" is defined in section 794.011(1)(b), Florida Statutes (1993), which reads: "`Mentally defective' means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct." The similarity of this de...

...Bryant had concluded that the alleged victim "fell right at the upper end of" what she referred to as the "trainable mentally handicapped range," and that she had a "mental and developmental age" of "between five [and] seven years." Ms. Bryant was not familiar with the term "mentally defective," as defined in section 794.011....

...On this issue, our standard of review is whether, viewing all of the evidence and inferences fairly to be drawn therefrom in a light most favorable to the state, a reasonable jury might have found that the alleged victim was "mentally defective," as that term is defined in section 794.011(1)(b), on the date of the alleged sexual battery....

...ellant is guilty of the second-degree felony of "[s]exual battery upon a person 12 years of age or older, without that person's consent," and without the "use [of] physical force and violence likely to cause serious personal injury," in violation of section 794.011(5), Florida Statutes (1993)....

...Rodney Mathis (Mathis) was convicted of sexual battery upon a mentally defective child, and lewd, lascivious or indecent assault, or act upon or in the presence of, a child. I agree that the evidence was insufficient to prove that the child victim was "mentally defective" within the meaning of section 794.011(1)(b), Florida Statutes (1993)....

...Cummings, Pensacola, for appellant. Jim Smith, Atty. Gen., Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for appellee. MILLS, Judge. Norvel Lee Dorch appeals from an order denying his motion for a new trial following his conviction of sexual battery, Section 794.011(2), Florida Statutes, and lewd, lascivious, or indecent assault or act upon or in the presence of a child, Section 800.04, Florida Statutes....

...ed C.G. between her legs. Dorch proceeded to trial on 22 November 1983. During jury deliberations, the jury posed two questions to the trial judge. At *358 issue is the second by which the jury requested a definition of "union" within the context of Section 794.011(1)(f), Florida Statutes, which states: (f) "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 shall not include acts done for bona fide medical purposes....

...Dorch now asserts two points of error. First, he urges that the trial court erred by providing any additional instruction as to the meaning of the word "union" outside of the statute itself, inasmuch as this should be left to the common sense interpretation of the jury. He argues that Section 794.011 sets forth definitions of those terms the Legislature felt might need or require specific definitions....

...The court proceeded to decide the issue of whether such a discrepancy results in an "illegal sentence" for purposes of rule 3.800(a) because it concluded the question was one of great public importance and had engendered conflicting decisions in the district courts. [2] See § 810.02(2), Fla. Stat. (1987). [3] See § 794.011(3), Fla. Stat. (1987). [4] See § 810.02(3). [5] See § 810.02(2). [6] See § 794.011(4)(b). [7] See § 810.02(2). [8] See § 794.011(3)....

...invalidate probable cause for any number of Florida state crimes the officers reasonably could have believed occurred based on the scene greeting them at Babcock’s residence. See, e.g., Fla. Stat. § 794.05(1) (“Unlawful sexual activity with certain minors”); id. § 794.011(4)(a) (“Sexual battery”)....

...Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. WALLACE, Judge. Jerry Wayne Brown, Jr., appeals his two judgments and life sentences for sexual batteries committed upon two persons under the age of twelve years, violations of section 794.011(2)(a), Florida Statutes....

...idence corroborating the sisters' testimony. At the charge conference, the prosecutor requested a special jury instruction based on section 794.022(1), which provides: "The testimony of the victim need not be corroborated *431 in a prosecution under s. 794.011." Section 794.011 is the sexual battery statute....

..." Id. The giving of an instruction—even one taken directly from a statute—that violates these basic safeguards may result in reversible error. See id. at 770. In this case, our task is to determine whether the special instruction based directly on section 794.011(2) had the potential to mislead the jurors or was otherwise improper....

...The new statute also provided that "[t]he testimony of the victim need not be corroborated in prosecutions under [the Sexual Battery statute]; however, the court may instruct the jury with respect to the weight and quality of the evidence." This provision originally appeared in the 1974 Laws as section 794.011(5), but was renumbered in the bound volume of the Florida Statutes as section 794.022(1), its current designation....

...We conclude that it does not and affirm. The state's information charged as follows: "ELVESTRE TOUSSAINT, a person under eighteen years of age, did unlawfully commit sexual battery upon, ... T.R., a person less than twelve years of age ..., contrary to Florida Statute 794.011(2)(b)." (Emphasis added)....

...Appellant made a general motion for a judgment of acquittal at the close of the state's case but it is apparent from the record that neither the state nor defense counsel noticed the fact that the information was in error as to the proper charge, namely a violation of section 794.011(2)(a), which crime is defined as a person over the age of 18 engaging in enumerated acts of sexual battery with a person under the age of twelve....

...The issue in this case is whether the change of the age in the crime charged constitutes the charging of a different crime. We held in Jesus v. State, 565 So.2d 1361, 1363 (Fla. 4th DCA 1990), that "the offender's age is not an element of the crime of sexual battery. Section 794.011 refers to a person's age only in prescribing the means by which an offender should be punished." But see Baker v....

...ontinuous course of events. He contends that Section 775.021, Florida Statutes (1979) [1] requires there to be a violation of two separate statutes before he can be held guilty of separate offenses. Here defendant was charged under a single statute, Section 794.011(4)(b)....

...Because it was the proper duty of the trial to resolve the conflict, we find no error by the trial court in admitting the statements. MOTION FOR JUDGMENT OF ACQUITTAL Jesus contends that the state improperly relied on his statement in establishing his age for purposes of section 794.011(2), Florida Statutes [1] and, accordingly, that the state failed to present a sufficient corpus delicti, or prima facie case, without use of the statement....

...o mean the legal elements necessary to show that a crime was committed." (emphasis supplied). See also Drysdale v. State, 325 So.2d 80 (Fla. 4th DCA 1976); McQueen v. State, 304 So.2d 501 (Fla. 4th DCA 1974), cert. denied, 315 So.2d 193 (Fla. 1973). Section 794.011(1)(h) defines the crime of "sexual battery" as oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by an object. According to that section, the offender's age is not an element of the crime of sexual battery. Section 794.011 refers to a person's age only in prescribing the means by which an offender should be punished....

...25 years is unconstitutionally disproportionate to the harm he caused. In his brief, counsel for Jesus asserts: Appellant contends that the residual and sole mandatory LIFE sentence with a twenty-five (25) year mandatory minimum sentence required by section 794.011(2), is grossly disproportionate and excessive punishment for the offense....

...life imprisonment without eligibility of parole for at least 25 years: We find that the imposition of a life sentence with a minimum 25 years imprisonment prior to eligibility for parole as required by legislative enactment — Section 775.082(1) and Section 794.011(2), Florida Statutes, upon appellant does not amount to cruel and unusual punishment....

...Therefore, any request for consideration of that question would be properly lodged with the Governor under Section 8, Art. IV, Florida Constitution. 342 So.2d at 470. For the reasons set out above, we affirm the final judgment and sentence. ANSTEAD, GLICKSTEIN and WARNER, JJ., concur. NOTES [1] Section 794.011(2) reads in part: A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony, punishable as provided in ss....

...On February 6, 1984, the State of Florida (“the State”) filed a three-count information against the appellant. Count one charged that the appellant committed sexual battery against his daughter, a person under twelve years of age. See Fla.Stat. Ann. § 794.011(2)....

...fore becoming eligible for parole_” See Fla.Stat.Ann. § 775.082(1) (emphasis added). Count two of the information charged that the appellant committed sexual battery against his other daughter, a person over twelve years of age. See Fla.Stat.Ann. § 794.011(5). Count three charged the appellant with attempted sexual battery with a person over twelve years of age. Fla.Stat.Ann. §§ 794.011(5), 777.04....

...Initially, the state trial court appointed an assistant state public defender to represent the appellant. Prior to trial, however, the appellant retained private counsel and the assistant public defender withdrew *476 from the case. According to the appellant, his privately-retained lawyer stated that persons convicted under § 794.011(2) become eligible for parole after serving between five and seven years in prison....

...ent rights. This second claim rested on at least seven allegations of constitutionally deficient representation; one such allegation provided that the appellant’s lawyer had misrepresented the mandatory minimum sentence that could be imposed under § 794.011(2)....

...On January 15, 1987, the appellant filed with the district court the instant petition for a writ of habeas corpus. The petition also set forth two grounds of relief. First, the appellant maintained that his plea was involuntary due to counsel’s misrepresentation of the mandatory minimum sentence under § 794.011(2)....

...t mandate a Faretta inquiry. II We affirm appellant's conviction of armed sexual battery, based on his threats to use a knife, but reverse imposition of a mandatory minimum sentence for this crime, and remand for resentencing in accordance herewith. Section 794.011(4)(b), Florida Statutes (1989), provides: (4) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent ......

...carry out his threat. She testified that she believed him and feared him. Just as the second district in Shelby v. State, 541 So.2d 1219 (Fla. 2d DCA 1989), found the threat with an unseen and undiscovered deadly weapon satisfied the requirements of section 794.011(3), Florida Statutes (1985), when the assailant, in order to carry out his assault, informs the victim he has a weapon under circumstances that cause the victim to have reason to believe that the assailant has the ability to carry out...

...ce: DOES SECTION 90.404(2)(b), FLORIDA STATUTES (2001), VIOLATE *804 DUE PROCESS WHEN APPLIED IN A CASE IN WHICH IDENTITY IS NOT AN ISSUE? Affirmed. SALCINES and COVINGTON, JJ., concur. NOTES [1] See Williams v. State, 110 So.2d 654 (Fla. 1959). [2] § 794.011(2)(a), Fla....

...tive sentence. Brown v. State, 508 So.2d 522 (Fla. 2d DCA 1987). Nevertheless, for the reasons which follow, we conclude that Orsi is not entitled to relief. The record reflects that Orsi originally was charged with sexual battery, a capital felony. § 794.011(2), Fla....

...he did not expect a sexual assault from a married man, is to ignore the difference between affection, or, even lust — and violence. The trial court was well within its discretion to disallow the question. This judgment should be affirmed. NOTES [1] § 794.011(4)(a), Fla. Stat. (2003). [2] § 794.011(5)....

...ction when the indictment references a specific section of the criminal code which sufficiently details all the *245 elements of the offense. McClamrock v. State, 374 So.2d 1076 (Fla. 2d DCA 1979). In this case the indictment specifically referenced section 794.011(3), Florida Statutes. By referencing section 794.011(3), which specifically defines all the elements of the offense, the indictment placed DuBoise on adequate notice of the crime being charged....

...Florida Statutes. In fact, it is the chapters that are referenced that clarify what behavior the statute prohibits. In the chapters referenced by this statute, the victim is defined by age in many of the individual criminal provisions. For example, section 794.011(2)(a) refers to sexual battery by a person over eighteen years of age on a person less than twelve and section 800.04(4) defines lewd or lascivious battery as twelve or over, but under sixteen....

...With respect to the requested jury instruction, appellant relies exclusively on the schedule of lesser included offenses in the Florida Standard Jury Instructions in Criminal Cases at page 262. The schedule lists "battery" as the only Category I lesser offense to sexual battery under section 794.011(2)....

...onstituent elements of the crime of simple battery is an unconsented touching, whereas this particular sexual battery does not require either an allegation or proof of the nonconsent of the victim. Thus, says the State, proof of sexual battery under section 794.011(2), does not necessarily include proof of a battery because the element of nonconsent is missing....

...ery charge include the constituent elements of simple battery, to-wit: an unconsented touching. The schedule of necessarily lesser included offenses thus correctly lists simple battery as a necessarily lesser included offense of sexual battery under section 794.011(2), and the jury should have been so instructed....

...1983); State v. Abreau, 363 So.2d 1063 (Fla. 1978). Relying on earlier cases such as Ray v. State, 403 So.2d 956 (Fla. 1981), this court has held that lewd assault under section 800.04 (1983) is not a necessarily lesser offense of sexual battery under section 794.011(2), Florida Statutes (1983)....

...r to convict him of simple battery. The error in not instructing the jury on the lesser crime of simple battery is harmless here. Cf. Acensio v. State, 497 So.2d 640 (Fla. 1986). Appellant's contention that the mandatory penalty for conviction under section 794.011(2) is constitutionally prohibited as "cruel and unusual punishment" has been previously rejected by the Florida supreme court....

...id not constitute such cruel and unusual punishment. See also Rusaw v. State, 451 So.2d 469 (Fla. 1984) and State v. Hogan, 451 So.2d 844 (Fla. 1984). We see no reason to belabor this issue further. AFFIRMED. DAUKSCH and COBB, JJ., concur. NOTES [1] Section 794.011(2), Florida Statutes (1983) provides: A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss....

...[Emphasis in original]. [Footnotes omitted]. Of Public Wrongs, § 212, p. 1609. [4] The element of "without the victim's consent" is explicitly set forth in the sexual battery statute, Chapter 794, Florida Statutes (1985), with some exceptions. One such section, 794.011(2) is discussed in this opinion. Another section is 794.05, (carnal intercourse with an unmarried person under the age of 18 years and of previous chaste character). A charge under this latter section, like a charge under 794.011(2) need not allege lack of consent, because the law presumes that a person falling within the protected class defined by this statute is legally incapable of consenting to or protesting against the act....

...Holley v. State, 423 So.2d 562 (Fla. 1st DCA 1982). As to the first two requested instructions, whether a defendant knew or should have known that the victim was refusing sexual intercourse is not an element of the crime of sexual assault as defined in Section 794.011(3), Florida Statutes (1983)....

...e, and then depart from the sentencing guidelines based on his status as a habitual offender. The second argument advanced will be treated in context under the next point. As concerns the first argument, the statute under which Watson was sentenced, Section 794.011(3), provides that the crime of sexual battery with great force is a life felony punishable as provided in Sections 775.082, 775.083 or 775.084, Florida Statutes....

...4th DCA), cert. denied, 271 So.2d 142 (Fla. 1972), is inapplicable to his conduct despite the fact that he indisputably acted with the intent to have sexual intercourse. While it is true that "sexual battery," undefined in Section 800.04, is elsewhere defined in Section 794.011(1)(f), Florida Statutes (1981), as "oral, anal or vaginal penetration by, or union with, the sexual organ of another ..." without any requirement that the penetration or union be involuntary or accomplished by force, and thus an intent to have consensual sexual intercourse is ostensibly equated with an intent to commit a sexual battery, we think it clear, and the defendant agrees, that the term "sexual battery" as used in Section 800.04 refers not to the definition in Section 794.011(1)(f), but rather to the panoply of sexual battery crimes enumerated in Section 794.011, that is, the non-consensual, coercive or forcible sexual intercourse or union described in Sections 794.011(2), (3), (4) and (5), Florida Statutes. Thus, we conclude that when it is said in a prosecution under Section 800.04 that the defendant acted "without the intent to commit sexual battery," what is meant is that the defendant did not intend to commit an act prohibited by Sections 794.011(2) through (5). [3] We believe this conclusion is compelled by the history of Section 800.04. Before Section 794.011 was promulgated, Section 800.04, Florida Statutes (1973) prohibited the very same acts as the 1981 version of the statute when such acts were committed "without the intent to commit rape. " The word "rape" as formerly used in the statute was interpreted to mean forcible rape only. See Baines v. State, 221 So.2d 3, 4 (Fla. 2d DCA 1969). When Section 794.011 was enacted in 1974, see Ch....

...(1975), thus manifesting the same legislative intent as the predecessor statute. The deletion of the word "involuntary" from the current version of Section 800.04 was not intended to bring about a substantive change, but rather was done to *182 "conform the name of the crime to the terminology of § 794.011." See Ch. 79-400, § 290 et seq., Laws of Florida. [4] Our conclusion is not only compelled by this legislative history, but is supported by the analysis of Section 794.011(1)(f) found, albeit in dictum, in Hodges v....

...or not being, criminal, is not an act or intent of the accused, but the mental assent of the `victim.'" 403 So.2d at 1377-78 (emphasis supplied). Since sexual intercourse with an unchaste assenting twelve-year-old is not a sexual battery crime under Section 794.011, a person, as the defendant, who acts with the intent to have consensual sexual intercourse with an unchaste twelve-year-old acts "without the intent to commit a sexual battery," and that essential element of Section 800.04 is satisfied here....

...is buttressed when, as is required, *184 Section 800.04 is construed in pari materia with other Florida statutes governing similar conduct so that "effect may be given to all the provisions of each... ." State v. Hayles, 240 So.2d 1, 3 (Fla. 1978). Section 794.011(2), Florida Statutes (1981), punishes as a capital or life felony (depending on the age of the offender) sexual intercourse with a child eleven years of age or younger, without regard to whether the victim consented or whether the victim was chaste....

...chaste character. In summary, the undisputed facts reveal that the defendant's acts were unquestionably lewd and lascivious and done without the intent to commit a sexual battery, that is, without the intent to commit one of the crimes enumerated in Section 794.011(2) through (5)....

...ould be convicted of felony murder for a death occurring during the commission of "oral, anal or vaginal penetration by, or union with, the sexual organ of another." Yet that would be precisely the result if the definition of sexual battery found in Section 794.011(1)(f) were imported into Section 782.04. Thus, "sexual battery" in the felony murder statute must also refer to the panoply of crimes enumerated in Section 794.011(2) through (5)....

...ty is irrelevant. Under the latter — and, we believe, correct — interpretation, a child who is eleven years old or younger is protected from a "consensual" handling and fondling even as such child is protected from "consensual" sexual battery. See § 794.011(2), Fla....

...Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee. LARRY G. SMITH, Judge. Hodges appeals a judgment and sentence finding him guilty of sexual battery with the use of force not likely to cause personal injury, as proscribed by Section 794.011(5), Florida Statutes (1978)....

...r in closing argument; and no error on the part of the trial court in failing to instruct the jury on the offense of attempt to commit sexual battery with the use of physical force and violence not likely *889 to cause serious personal injury, under Section 794.011(5), Florida Statutes....

...o the jury. The trial judge ruled correctly. Section 794.022(2), provides that specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under Section 794.011, Florida Statutes; however, under the statute (Section 794.022(2)), when consent by the victim is at issue (as it became in this case), such evidence may be admitted if it is first established to the court outside the presence of the...

...precludes review under Florida Rule of Criminal Procedure 3.390(d). In this case the original information, filed March 15, 1978, charged the offense of sexual battery by use of physical force and violence not likely to cause serious personal injury, Section 794.011(5), Florida Statutes. However, on July 10, 1978, an amended information in the same case was filed charging sexual battery by coercing the victim to submit by threatening to use force or violence likely to cause serious personal injury, Section 794.011(4)(b), Florida Statutes....

...ury, based upon a jury instruction, given without objection, treating this offense as a lesser included offense of the crime charged, viz, sexual battery by threatening to use physical force or violence likely to cause serious personal injury, under Section 794.011(4)(b). In this case, as in Carter, there was proof of force as required for the offense under Section 794.011(5), and the trial court without objection treated the offense under Section 794.011(5) as a lesser included offense of the crime charged. An instruction was given in this case on the offense of attempt to commit the crime charged, under Section 794.011(4)(b), which satisfies Rule 3.510, Rules of Criminal Procedure, requiring an instruction on the attempt to commit the offense charged....

...Appellant does not raise the issue that was argued in Carter, supra, that he was convicted of an offense for which he was not charged; and appellant's brief contains no reference to conflict between Carter and Grange v. State, 371 So.2d 723 (Fla. 1st DCA 1979), on the issue of whether the offense under Section 794.011(5) is a lesser included offense of sexual battery under Section 794.011(4)(b)....

...tery and two counts of battery. Because we find that the trial court erred in some of its evidentiary rulings, we reverse and remand for a new trial. The appellant was charged by indictment with three counts of capital sexual battery in violation of section 794.011(2), Florida Statutes (1983)....

...The prime question as to the true significance of the testimony of the "similar fact" witness here, as always, is: what particular proposition was this testimony offered to prove? Appellant was accused of committing certain sexual acts described as "sexual battery" in section 794.011(1)(f), Florida Statutes (1979), but which are a crime as proscribed in section 794.011(4) only if committed on or with another "without that person's consent." Since the acts described in the statutory definition of "sexual battery" *1378 are not illegal per se and are, therefore, conduct essentially innocent, the crux,...

...as being, or not being, criminal, is not an act or intent of the accused, but the mental assent of the "victim." In this case there is no question or issue but that the accused participated in one or more of the acts described as "sexual battery" in section 794.011(1)(f), Florida Statutes, of which the prosecutrix complains; therefore his "identity" as the "perpetrator" is not an issue concerning which similar fact evidence might for this purpose be proper in another case....

...consent of another. Evidence of the previous crime committed by Helton does not fit within the parameter of admissibility under the rule in Williams either as evidence of consent or identity because it was not relevant to either. 365 So.2d at 1102. Section 794.011(1)(h), Florida Statutes (1979), defines "consent" as intelligent, knowing, and voluntary consent and as not including coerced submission....

...However where the accused's acts are not admitted and are ambiguous his intent or design may be very much an issue, such as in cases involving an attempted rape or assault with intent to rape and fondling cases. See e.g., Ross v. State, 112 So.2d 69 (Fla.3d DCA 1959). [7] Section 794.011(4)(b) also refers to "[w]hen the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute these threats." [8] Knox v....

...e of false imprisonment. Faison; Hrindich. REVERSED and REMANDED for a new trial with instructions to the trial court to enter an order granting the judgment of acquittal on the charge of false imprisonment. COWART and HARRIS, JJ., concur. NOTES [1] § 794.011(5), Fla....

...o testify nor did any of the remarks prejudice the defendant. The defendant also contends that the trial court erred in adjudicating him guilty of battery where he did not insert his fingers or any other object into the victim's vagina. We disagree. Section 794.011, Florida Statutes (1989), the sexual battery statute, protects an individual's sexual privacy from violence. Aiken v. State, 390 So.2d 1186 (Fla. 1980); Gruzel v. State, 484 So.2d 97 (Fla. 1st DCA 1986); Surace v. State, 378 So.2d 895, 897 (Fla. 3d DCA 1980). Section 794.011(1)(h) defines "sexual battery" 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 " (emphasis added)....

...In the instant case, the defendant was charged with three counts of sexual battery. On one of the sexual battery counts the defendant forced the victim to insert her fingers into her own vagina while he watched and took pictures. The statute outlaws the penetration of any object into the vagina. § 794.011(1)(h), Fla....

...cessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Beber was charged with two counts of capital sexual battery upon a child less than twelve years of age, as provided in section 794.011(2)(a), Florida Statutes....

...dance on the head of a pin." Beber, 853 So.2d at 581. [5] While Beber was charged with committing these acts between June 2000 and June 2001, the current version of the statute is the same as the statute under which Beber was charged and convicted. Section 794.011(2)(a), Florida Statutes (2004), provides in pertinent part that "[a] person 18 years of age or older who commits sexual battery upon ......

...t evidence. Accordingly, we reverse and direct that a judgment of acquittal be entered for the appellee, Duke. Duke was charged with three counts of attempted sexual battery on a child pursuant to sections 800.04(3); 777.04, Florida Statutes (1995). Section 794.011(1)(h) provides: `Sexual battery' means oral, anal, or vaginal penetration by, or union with, the sexual organ of another by any other object;.......

...of both the United States and Florida Constitutions. We reverse as to that issue. Factual Background Dionne was charged by information with committing sexual battery against his sleeping victim, a person twelve years of age or older, in violation of section 794.011(5), Florida Statutes (2000)....

...ich allowed the introduction of out-of-court statements made by a child victim of sexual abuse if the child had a physical, mental, emotional, or developmental age of eleven or less. Notably, the defendant in Glendening was charged with violation of section 794.011(2), Florida Statutes (1985)....

...be established to enter a defendant's confession into evidence. Thus, section 92.565 regulates the mode in which the facts constituting guilt may be placed before the jury. It does not reduce the quantum of evidence necessary for a conviction under section 794.011(5), eliminate an element of the offense prescribed by that statute, increase *1095 the punishment for that offense, or lower the burden of proof necessary for a conviction....

...Under this rule, the State is required to present evidence that a crime occurred and evidence establishing each element of the crime before the defendant's confession can be admitted. Bradley v. State, 918 So.2d 337, 339 (Fla. 1st DCA 2005). Corona was charged under section 794.011(2), Florida Statutes (2000). Section 794.011(2)(a) provides that "[a] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss....

...775.082 and 921.141." Sexual battery is defined by the statute 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," but not any act done for a bona fide medical purpose. § 794.011(1)(h), Fla....

...The defendant was charged and convicted of committing sexual battery against two separate victims while armed with a knife. Pursuant to the applicable statutes, these offenses were life felonies punishable by life imprisonment or for a term of years not less than 30 years. See § 794.011(3), Fla....

...conviction of attempted first-degree murder be vacated, and we remand for resentencing in accord with this opinion. It is so ordered. HARDING, C.J., and SHAW, ANSTEAD, PARIENTE and LEWIS, JJ, concur. QUINCE, J., concurs in result only. NOTES [1] See § 794.011(3), Fla. Stat. (1987). [2] Section 782.04(1), Florida Statutes (1987), includes premeditated murder, section 782.04(1)(a)1., and felony murder, section 782.04(1)(a)2. [3] § 794.011(3), Fla....

...d kill her children who were asleep in the bedroom. She was then raped and robbed by both men. Wicker was subsequently charged and convicted of three separate counts: burglary (section 810.02(2), Florida Statutes (1981)); involuntary sexual battery (section 794.011(3), Florida Statutes (1981)); and robbery (section 812.13(2)(a), Florida Statutes (1981))....

...f analyzing the offenses' statutory elements. Applying the Baker and Gibson statutory analysis to the present case, we hold that the sexual battery conviction was proper and should be reinstated. Involuntary sexual battery, as statutorily defined in section 794.011(3), Florida Statutes (1981), requires (1) a sexual battery; (2) upon a person over the age of eleven years; (3) without that person's consent; and (4) with the use or threat to use a deadly weapon or with the use of actual physical force which is likely to cause serious personal injury....

...At the time of the offense, the victim's children were asleep in a bedroom in the house and her husband was away at work. Williams was charged by information with the first degree felony of burglary pursuant to Section 810.02(2), Florida Statutes (1983), and the second degree felony of sexual battery pursuant to Section 794.011(5), Florida Statutes (1983)....

...Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee. MONACO, J. The appellant, Anthony Houston, was convicted by jury of two counts of sexual battery based on coercion of the victim in violation of section 794.011(4)(b), Florida Statutes (2000)....

...Gen., Tallahassee, and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee. PER CURIAM. The defendant was charged in one information (87-347) with three counts of sexual battery upon a child under 12 years of age (his stepdaughter M) in violation of section 794.011(2), Florida Statutes; in a second information (87-375) with one count of sexual battery upon a child under 12 years of age (his daughter F) in violation of section 794.011(2), Florida Statutes, and in a third information (87-376) with one count of sexual battery upon a child under 12 years of age (his daughter K) in violation of section 794.011(2), Florida Statutes....

...t causing his hand or finger " to unite with or to penetrate" the victim's vagina. The second count in the information in case number 87-347 charged that the defendant "caused his finger to penetrate or have union with her vagina." [Emphasis added]. Section 794.011(1)(h), Florida Statutes, defines "sexual battery" as: The term "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: ... In Dorch v. State, 458 So.2d 357 (Fla. 1st DCA 1984), the court analyzed section 794.011(1)(h) (formerly 794.011(1)(f)), Florida Statutes, as encompassing three distinct classes of proscribed behavior: firstly, oral, anal, or vaginal penetration by the sexual organ of another; secondly, *810 oral or vaginal penetration of another by any other object; thirdly, ......

...He contends that several trial errors occurred which deprived him of a fair trial. We find reversible error in two of the several issues he raises. There is no need to provide a recitation of the evidence adduced at trial. Suffice it to say that the state presented a prima facie case of capital sexual battery, a violation of section 794.011(2)(a), Florida Statutes (1991)....

...Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee. THOMPSON, Judge. Gillespie appeals his conviction and sentence for sexual battery by using or threatening to use a deadly weapon in violation of § 794.011(3), Fla. Stat. (1981). We affirm. Of the seven points raised on appeal, only the point contending the trial court committed reversible error by refusing to instruct the jury on the lesser included offense provided in § 794.011(4)(b) merits discussion....

...1978), Gillespie contends the trial court committed per se reversible error in failing to instruct the jury, as requested, on the lesser included offense of sexual battery by threatening to use force or violence likely to cause serious personal injury, § 794.011(4)(b). Gillespie was charged and convicted of sexual battery by using or threatening to use a deadly weapon, to wit: a knife in violation of § 794.011(3), Fla....

...The only evidence in the case is that Gillespie committed a sexual battery by using or threatening to use a deadly weapon, to wit: a knife. Gillespie makes no contention on appeal that a deadly weapon was not used in the commission of the offense. Section 794.011(4)(b) is a category 2 lesser included offense which is not necessarily included in the offense for which Gillespie was charged....

...th a knife, the majority now apparently concludes that because a knife was used, there can be no evidence that the threatening display of the knife involved as well the use of force or violence likely to cause serious personal injury in violation of section 794.011(4)(b)....

...In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla. 1981). The Standard Jury Instructions in Criminal Cases lists the offense provided for in subsection (4)(b) as a category 2 lesser offense — one that may or may not be included depending on the charge and the evidence — to section 794.011(3), the offense for which defendant in the case at bar was convicted....

...It alleges that the defendant committed "a sexual battery upon and without the consent of [victim], a person over the age of 11 years, and in the process thereof used or threatened to use a deadly weapon, to wit: a knife, contrary to the provisions of section 794.011(3), Florida Statutes." (e.s.) The only substantial question remaining is whether the evidence presented meets the second criterion....

...cause serious personal injury — plus the additional fact of the use of a deadly weapon. Although Harris v. State, 338 So.2d 880 (Fla. 3d DCA 1976), was decided before rule *12 3.510(b)'s amendment, its analysis of whether the offense proscribed by section 794.011(5) — sexual battery by the use of force not likely to cause serious personal injury — can be considered a lesser offense to subsection (3) is altogether pertinent to the issue at bar....

...e trafficking prosecutions through the use of alternative methods of proof rather than attempting to provide for multiple convictions and punishments for criminal conduct which is basically unitary. Id. In examining the statutory offense provided in section 794.011(3), it seems reasonably clear to me that it contains all of the elements present in subsection (4)(b)....

...and the fact that threat of use of a deadly weapon was charged is not inconsistent with a finding that the same conduct of appellant constituted a threat of force or violence likely to cause serious personal injury. Accordingly, if an instruction on section 794.011(4)(b) had been given, and if appellant had been convicted of that crime, the conviction could not have been for a crime not charged in the information....

...Barber does withdraw his plea, the State will have the option of reinstating the previously nolle prossed counts of the information. REVERSED and REMANDED. SHARP, W. and PETERSON, JJ., concur. NOTES [1] See § 794.05(1), Fla. Stat. (2003). [2] See § 794.011(4)(e), Fla....

...We approve the decision of the district court below. In 1986, Perez was charged with three separate counts of sexual battery upon children eleven years of age or younger, which allegedly occurred between June 1, 1975 and June 1, 1976, in violation of section 794.011(2), Florida Statutes (Supp....

...on in Buford that death is no longer a possible penalty. See Heuring (sexual battery may be charged by information rather than by indictment); State v. Hogan, 451 So.2d 844 (Fla. 1984) (because death is no longer possible for crimes charged under subsection 794.011(2), Fla....

...n for a life felony or a felony of the first degree must be commenced within 4 years after it is committed... . [2] We note, however, that we have recently recognized that "[n]otwithstanding our determination that the sexual battery proscribed by subsection 794.011(2) is no longer a capital crime, in Rusaw [ Rusaw v....

...1981), the Florida Supreme Court held that a lewd assault on a child under fourteen, under Section 800.04, Florida Statutes (1975), was not (1) a necessarily included offense, or (2) a "pure" permissive lesser included offense under the charged offense of sexual battery on a person over the age of eleven under Section 794.011(5), Florida Statutes (1975). The Court reached this result on the basis that, inter alia, the *1078 lewd assault was "not `lesser' because both section 794.011(5) [the charged offense] and section 800.04 [the alleged lesser offense] are second-degree felonies," and that, accordingly, the defendant "was convicted of a crime [lewd assault] for which he was not charged and which was not a permi...

...econd degree felony. 403 So.2d at 958 & n. 2. The Ray court found that the offense of lewd and lascivious act was neither a category 3 nor a category 4 lesser included offense. In that context, the court stated, "It is also not `lesser' because both section 794.011(5) and section 800.04 are second-degree felonies." Id....

...testimony of the defendant that was given at a mistrial, held prior to this trial in which the defendant was convicted. In the instant case, sub judice, defendant was arrested and charged with the crime of sexual battery pursuant to Florida Statute 794.011(4)(b)....

...The amended information charged Shaara with one count of grand theft of an automobile (§ 812.014, Fla. Stat.), one count of armed kidnapping (§§ 775.087(1) and 787.01, Fla. Stat.), three counts of sexual battery with threatened use of force or violence likely to cause serious injury (§ 794.011(4)(b), Fla....

...For reasons not explained nor made apparent in the record, the jury instructions on the sexual battery *1341 counts, prepared by the state and approved by defense counsel and the court, were phrased in terms of sexual battery by use of a deadly weapon, an offense proscribed by section 794.011(3), Florida Statutes, rather than the offense actually charged....

...1956) (once a defendant elects to testify, his testimony is to be weighed the same as any other witness, and argument directed at what he says and does is justified). Shaara next contends that the circuit court erred in convicting him of sexual battery with a deadly weapon, an offense defined in section 794.011(3), because counts III, IV, and V, did not charge that offense. That offense is a higher degree felony than sexual battery with threat to use force likely to cause serious personal injury, the offense defined in section 794.011(4)(b) and charged in each of those counts....

...lesser-included offenses that are supported by the accusatory pleadings and evidence adduced at trial (category two lesser-included offense). [3] In Gould, the defendant was charged with sexual battery on a victim physically helpless to resist under section 794.011(4)(a), Florida Statutes (1985), and he requested jury instructions on several lesser-included offenses of sexual battery on a physically helpless victim, including sexual battery by use of force not likely to cause serious injury under section 794.011(5)....

...The trial court denied the request and instructed the jury only on the charged offense and simple battery as a lesser-included offense. The defendant was convicted of the charged offenses. Because the convictions were not supported by the *1343 evidence, the district court reversed the sexual battery convictions under section 794.011(4)(a) and directed the trial court to adjudicate the defendant guilty of sexual battery under section 794.011(5) as a necessarily included offense, citing section 924.34 as authority....

...The supreme court quashed the district court's decision, holding that section 924.34 applies only to necessarily lesser-included offenses, i.e., offenses sharing common statutory elements. Looking at the statutory elements of both offenses, the court concluded that section 794.011(5) was not a necessarily included lesser offense of section 794.011(4)(a), because "a section 794.011(4)(a) sexual battery can be proven without proving the actual use of force" as required under section 794.011(5). 16 F.L.W. at S213. The supreme court further stated: For section 794.011(5) sexual battery to be a necessarily included offense of the major offense of section 794.011(4)(a) sexual battery, all the elements of section 794.011(5) must also be the elements of section 794.011(4)(a)....

...s an essential link in the chain of evidence," the lesser offense is a necessarily included lesser offense of the major offense. Brown v. State, 206 So.2d 377, 382 (Fla. 1968). Since Shaara's appeal involves offenses of sexual battery under sections 794.011(3) and (4)(b), and since the material facts are distinguishable from those in Gould, that case is not necessarily dispositive of the issue now before us. We hold that Shaara's convictions for sexual battery with a deadly weapon under section 794.011(3) necessarily determined the essential statutory elements of sexual battery by threats to use force likely to cause serious personal injury under section 794.011(4)(b), and that this court has authority under section 924.34 to reverse the erroneous convictions and remand with directions to adjudicate Shaara guilty of the lesser offense on each of those counts. We recognize that the Florida Standard Jury Instructions in Criminal Cases 290 (1989) indicate that sexual battery with serious threat of force (a section 794.011(4) offense) is a category two lesser-included offense of sexual battery with a deadly weapon (a section 794.011(3) offense). However, it is apparent from a comparison of the statutory elements of each offense that proof of the statutory elements of a section 794.011(3) sexual battery offense necessarily carries with it proof of the essential statutory elements of a section 794.011(4)(b) sexual battery as an essential link in the chain of evidence. Section 794.011(3) provides in pertinent part: A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury is guilty of a life felony... . (Emphasis added). Section 794.011(4)(b) provides in pertinent part: A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, under any of the following circumstances is guilty of a felony of the first degree ......

...use serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute the threat. (Emphasis added). According to the Florida Standard Jury Instructions in Criminal Cases 117-119(a) (1987), section 794.011(3) and section 794.011(4)(b) share the following identical statutory elements: 1....

...[(Defendant) committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object.] * * * * * * 4. The act was done without the consent of (victim). The only elements of the two offenses not stated in identical language are the third elements. The third element of a section 794.011(3) offense reads: 3. (Defendant) in the process a. [used or threatened to use a deadly weapon. ] b. [used actual physical force likely to cause serious personal injury.] (Emphasis added). The third element of a section 794.011(4)(b) offense reads: 3....

...Comparing the third elements of each offense, it is evident that proof of the use or threatened use of a deadly weapon (the criminal conduct of which Shaara was found guilty by the jury verdict) or the use of physical force likely to cause serious personal injury under section 794.011(3) necessarily carries with it inherent proof of threats to use force or violence likely to cause serious personal injury and the defendant's present ability to execute that threat....

...use force or violence likely to cause serious personal injury with the apparent ability to execute such threat. In both instances, the presence of the deadly weapon or the use of force necessary to the consummation of the more serious offense under section 794.011(3) also evidences a threat to use force or violence as well as the apparent ability to execute the threatened use of force or violence in violation of section 794.011(4)(b). [5] It follows, therefore, that section 924.34 provides authority to direct that Shaara be convicted of offenses under section 794.011(4)(b) upon remand....

...The convictions of counts III, IV, and V are reversed and the cause remanded with directions to enter convictions under each of those counts for the charged offense of sexual battery with threats to use force likely to cause serious personal injury under section 794.011(4)(b)....

...dily harm" as charged in the information, but convicted him of sexual battery "while armed with a deadly weapon" on the other two counts. The judgment recites convictions of the latter offense on all three counts, however. [2] The offense defined in section 794.011(3) is a life felony, while the several offenses defined in section 794.011(4) are felonies of the first degree....

...1987) (court can look at the information and evidence, rather than the statutory elements of the offenses, in determining whether the lesser-included offense was a permissive lesser-included offense). [4] Paragraph 3(b) of the instruction corresponds to the offense defined in section 794.011(4)(b). The other subparagraphs of this standard jury instruction define the elements of different offenses corresponding to the other subparagraphs in section 794.011(4)....

...[5] Perhaps one could postulate bizarre circumstances where the actual use of force would not necessarily carry with it any threat of action, such as when the victim is rendered unconscious, is thus unaware of the attack, and is incapacitated to resist; but that situation would be covered directly under section 794.011(4)(f) rather than the two statutes now under consideration. We construe section 794.011(3) as applying only in circumstances where the victim is aware of the attack.

...In addition to the victim's testimony, the State produced a fingerprint from a sliding glass door that matched Sanders' fingerprints and DNA evidence from the victim's oral swabs and from the carpet that matched Sanders'. Sanders was charged with sexual battery under section 794.011, Florida Statutes (2001), and the information alleged that Sanders used or threatened to use a deadly weapon (knife)....

...Appellee moved to dismiss the sexual battery count on the ground that at the time of the offense he and the complaining witness were husband and wife. The court granted the motion. The question presented is whether there is a common law interspousal exception applicable to section 794.011(5), Florida Statutes (1979), thereby precluding criminal prosecution of a husband who commits sexual battery upon his wife....

...It is inconceivable that a husband would accept the argument that by marriage he consented to the conduct defined in the statute if inflicted upon him by force or violence. We hold that the fact of marriage carries with it no implied consent to sexual battery as defined under section 794.011, Florida Statutes....

...at person's unmistakable objection. See State v. Smith. REVERSED. DAUKSCH, C.J., and COBB, J., concur. NOTES [1] While Florida no longer has a distinct statute dealing with rape, the offense is now incorporated in the broader sexual battery statute, section 794.011....

...The information in case number CR 92-6394 charged Velazquez with two counts of capital sexual battery in that: JULIAN VELAZQUEZ, a person eighteen (18) years of age or older, on the 5th day of June, 1992, in said County and State, did, in violation of Florida Statute 794.011(2), commit a sexual battery upon [the victim], a person less than twelve (12) years of age, and in furtherance thereof JULIAN VELAZQUEZ did with his mouth have union with the penis of [the victim]. Section 794.011(2) provides that: A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony, punishable as provided in ss. 775.082 and 921.141... . § 794.011(2), Fla....

...nduct occurred on or before June 5, 1992 the alleged criminal activity falls within the ambit of this statute." The trial court erred in so ruling. Chapter 794 of the Florida Statutes fails to define who is "a person less than 12 years of age" under section 794.011(2); however, section 2.01, Florida Statutes (1991), provides that the general common and statute laws of England in existence on July 4, 1776, remain in force in this state unless inconsistent with the Constitution and laws of the United States or with the acts of the Florida legislature....

...Under the common-law rule, the victim turned twelve at the earliest moment on June 4, 1992, and under the birthday rule, the victim turned twelve at 12:01 a.m. on June 5, 1992. [6] *305 In the event of our reversal of Velazquez's convictions under section 794.011(2), the state has requested that we enter judgments of conviction against Velazquez for the lesser offense of "sexual battery upon a person 12 years of age or older, without that person's consent." See § 794.011(5), Fla. Stat. (1991). In order for this court to grant this request, section 794.011(5) must be a necessarily lesser-included offense of section 794.011(2); i.e., all of the elements of section 794.011(5) must also be elements of section 794.011(2). See Gould v. State, 577 So.2d 1302 (Fla. 1991). See generally Brown v. State, 206 So.2d 377 (Fla. 1968). Because section 794.011(5) contains the additional element of lack of the victim's consent, the offense defined in that statute is not a necessarily lesser-included offense of section 794.011(2). Accordingly, we must deny the state's request to enter judgments of conviction under section 794.011(5)....

...We also conclude that we cannot enter judgments of conviction for lewd, lascivious, or indecent assault or act upon or in the presence of a child under the age of sixteen years as set forth in section 800.04, Florida Statutes (1991), because section 800.04 is not a necessarily lesser-included offense of section 794.011(2)....

...[7] On the other hand, if the evidence adduced at trial can support a jury verdict of lewd and lascivious assault as set forth in section 800.04, then a trial court, if requested, must give an instruction on such offense as a permissive lesser-included offense of sexual battery under section 794.011(2)....

...Defendant Tony Bernard Robinson appeals his conviction of burglary of a dwelling. We affirm. Defendant was charged by information with burglary of a dwelling while armed, with the intent to commit the offense of assault or battery in violation of Section 810.02, Fla. Stat. (1977), sexual battery in violation of Section 794.011(3), Fla....

...on 800.04, Florida Statutes (1997). While section 794.0235(1), Florida Statutes (1997), purported to authorize sentencing a defendant to treatment with medroxyprogesterone acetate, it did so only in the event of a conviction for sexual battery under section 794.011, Florida Statutes (1997), which was not charged in the present case. [1] An offense under section 800.04, Florida Statutes (1997), can involve much less serious conduct than sexual battery under section *523 794.011, including, we have held, "verbal conduct." See Morris v....

...law, the court: (a) May sentence a defendant to be treated with medroxyprogesterone acetate (MPA), according to a schedule of administration monitored by the Department of Corrections, if the defendant is convicted of sexual battery as described in s. 794.011. (b) Shall sentence a defendant to be treated with medroxyprogesterone acetate (MPA), according to a schedule of administration monitored by the Department of Corrections, if the defendant is convicted of sexual battery as described in s. 794.011 and the defendant has a prior conviction of sexual battery under s. 794.011. If the court sentences a defendant to be treated with medroxyprogesterone acetate (MPA), the penalty may not be imposed in lieu of, or reduce, any other penalty prescribed under s. 794.011....

...er-included offense for which he was convicted is not a lesser-included offense of the crime charged. The fourth urges error in the sentence in that the maximum term authorized for the offense of sexual battery with the use of threats or force under Section 794.011(4)(b), Florida Statutes (1975), is thirty years....

...In that case, we held that a conviction of a defendant upon the offense of involuntary sexual battery with the use of threats or force of serious personal injury constitutes a conviction of a crime not charged when the information charges the defendant with an involuntary sexual battery as proscribed by Section 794.011(3), Florida Statutes (1975)....

...of sexual battery "by threat when *408 the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and without the use of a deadly weapon ..." This offense is proscribed by Section 794.011(4)(b), Florida Statutes (1975)....

...Count II of the information, which charged the defendant with sexual battery, charged the use of a deadly weapon, as above quoted. The information recites the applicable statutory provision as Section 794.021(2), Florida Statutes (1975). This is an obvious clerical error; the crime charged is proscribed in Section 794.011(3), Florida Statutes (1975)....

...State, 340 So.2d 117 (Fla. 3d DCA 1976). Subsequent to that appeal, upon reversal and remand, Smith was tried a second time and a mistrial was declared when the jury was unable to agree. Smith was tried a third time resulting in the judgment and sentence here appealed. [2] Section 794.011, Florida Statutes (1975), which replaced the prior rape statute, Section 794.01, Florida Statutes (1973), became effective on October 1, 1974. Ch. 74-121, Laws of Florida. Section 794.021, which is cited in the information, does not create an offense but merely abolishes the defense of ignorance or belief as to the age of the victim. Section 794.011(3) makes it a life felony to commit sexual battery with the use of a deadly weapon or actual physical force likely to cause serious personal injury....

...Butterworth, Attorney General, Tallahassee, and Ann M. Childs, Assistant Attorney General, Daytona Beach, for Appellee. PETERSON, Judge. Lewis Reyes appeals his conviction and sentence for attempted sexual battery in violation of sections 777.04 and 794.011(5), Florida Statutes (1995)....

...If the conviction is for an offense involving sexual contact which does not include sexual penetration, the sexual contact must be scored *182 as a moderate injury, regardless of whether there is evidence of any physical injury. The term sexual battery in section 794.011 is defined as follows: (h) "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....

...Fox, Asst. Atty. Gen., for appellant. William A. Meadows, Jr., South Miami, George T. Pallas, Miami, for appellee. Before HENDRY, BASKIN and JORGENSON, JJ. JORGENSON, Judge. This case presents the question of whether one spouse may be prosecuted under section 794.011(3) and (5), Florida Statutes (1981), for sexual battery upon the other spouse....

...I William Rider was charged by information with the crime of sexual battery [1] upon Marion Rider, his wife. The two-count information alleged that Mr. Rider, in committing the sexual battery, used both actual physical force likely to cause serious personal injury, in violation of section 794.011(3), Florida Statutes (1981), [2] and physical force and violence not likely to cause serious personal injury, in violation of section 794.011(5), Florida Statutes (1981)....

...Hale, History of the Pleas of the Crown 629 (1736), as its authority, the trial court stated that "[t]here is a common law interspousal exception which precludes a husband from being prosecuted for the forceable rape of his wife" and that the sexual battery statute, § 794.011, Fla....

...ion on this factor alone would require an assumption that the common law exception still exists. We reject such a contention, " id. at 1129 (emphasis added). We agree. *905 A As pointed out by the fifth district in Smith, the sexual battery statute, § 794.011, Fla....

...Rather than depend upon outcry or resistance *906 from the victim to determine force or lack of consent the sexual battery statute defines consent as "intelligent, knowing, and voluntary consent [which] shall not be construed to include coerced submission," § 794.011(1)(h), Fla....

...Whatever the traditional notions concerning spousal consent to sexual intercourse may be they certainly do not contemplate consent to acts of violence such as those alleged in the information in this case. The sexual battery statute divides "force" into various degrees and separate crimes, including the threat of force. See § 794.011(3), (4)(b), (c), (5), Fla....

...e a different interpretation today from what might have been required yesterday," id. at 117-18, 27 So.2d at 835 (emphasis added). [8] We cannot today in good conscience recognize a common-law "interspousal exception" to prosecution for violation of section 794.011(3) and (5), Florida Statutes (1981)....

...Given a common-law notion of dubious validity and the legislative abolition of the codified common-law crime to which the notion supposedly attaches, we cannot and will not adopt a common-law presumption of consent to an act of violence. Reversed and remanded with directions to reinstate the prosecution. NOTES [1] Section 794.011(1)(f), Florida Statutes (1981), provides that "`[s]exual 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 shall not include acts done for bona fide medical purposes." [2] Section 794.011(3), Florida Statutes (1981), provides that [a] person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [3] Section 794.011(5), Florida Statutes (1981), provides that [a] person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses physical force and violence not likely to cause se...

...Appellant's second issue is that the court erred in refusing to give requested jury instructions in regard to Count I. We find no error in that regard. In Count I, Appellant was charged with violating section 800.04(3), Florida Statutes (1997), in that he committed an act defined as sexual battery under section 794.011(1)(h), Florida Statutes (1997), upon a child under the age of sixteen years....

...1st DCA 1977), cert. denied, 348 So.2d 948 (Fla. 1977); Castor v. State, 365 So.2d 701 (Fla. 1978); Magueira v. State, 352 So.2d 587 (Fla. 3d DCA 1977). AFFIRMED. FRANK D. UPCHURCH, Jr., J., and JAMIESON, FRANCES ANN, Associate Judge, concur. NOTES [1] Section 794.011(2), Florida Statutes (1977), provides that a person 18 years or older who commits a sexual battery upon a person 11 years of age or younger commits a capital felony....

...On January 9, 1989, petitioner was charged by information with the commission between January and August 1983 of two counts of lewd and lascivious assault upon a child in violation of section 800.04, Florida Statutes (1984) (counts I & III), and one count of sexual battery in violation of section 794.011(4)(e), Florida Statutes (1983) (count II)....

...rges by the state is not barred by the statute of limitations. Reino v. State, 352 So.2d 853 (Fla. 1977). The legislature amended section 775.15(7) effective January 1, 1985, extending the statute of limitations for violations of sections 800.04 and 794.011, if the victim is under sixteen years of age, so that the limitations period does not run until the victim reaches the age of sixteen years or the violation is reported to law enforcement, whichever occurs earlier....

...time for prosecution, we believe petitioner's argument relies on distinctions without real differences. In the case at bar, the 1985 amendment to section 775.15(7) reflects a clear legislative intent to extend prosecutions for violations of sections 794.011 and 800.04 to those offenses not time barred on or before December 31, 1984....

...al and in excess of the maximum allowed by law. The trial court summarily denied the petition after considering a response filed by the state. In his motion, appellant contended that his sentences for sexual battery exceeded the statutory maximum in section 794.011(3), Florida Statutes (1984), and his sentences for kidnapping exceeded the statutory maximum in section 787.01, Florida Statutes (1984)....

...al error which can be corrected on appeal or by the trial court in collateral attack proceedings. Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). Sexual battery is a life felony punishable as provided in section 775.082, 775.083 or 775.084. See section 794.011(2), Florida Statutes....

...Daniels, Public Defender, and Carol Ann Turner, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General and Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, for Appellee. KAHN, Judge. Leavorn Graves has been convicted of two counts of sexual battery pursuant to section 794.011(2)(a), Florida Statutes (1993)....

...See Davis v. State, 569 So.2d 1317 (Fla. 1st DCA 1990). Similarly, the evidence is sufficient to support the second count of sexual battery, which charges injury to the sexual organs of the six-year-old victim during an attempt to commit sexual battery. See § 794.011(2)(a), Fla....

...jury that "union is an alternative to penetration and means coming into contact with." This instruction was an erroneous statement of the law, because sexual battery by use of an implement other than the sexual organ of another requires penetration. § 794.011(1)(h), Fla....

...tain evidence during the course of the appellant's trial and, accordingly, reverse and remand for a new trial. The appellant was charged by a five count amended information. Count I alleged sexual battery of a person under age twelve in violation of section 794.011, Florida Statutes (1985); count II alleged attempted sexual battery of a person under age twelve in violation of sections 777.04 and 794.011, Florida Statutes (1985); count III alleged a lewd act in the presence of a child in violation of section 800.04, Florida Statutes (1985); count IV alleged the use of a child in a sexual performance in violation of section 827.071, Florida St...

...Thereafter, if relief is not obtained, Gonzales may file his *723 petition for mandamus in the trial court, naming the Department of Corrections, to obtain proper credit. Battles v. State, 799 So.2d 1098 (Fla. 2d DCA 2001). AFFIRMED, in part; Sentence VACATED as to Count Five. COBB and PALMER, JJ., concur. NOTES [1] § 794.011(2), Fla....

...(Mendez), appeals his convictions for home invasion robbery *750 in violation of section 812.135, Florida Statutes (1998), burglary of a dwelling with an assault and/or battery, in violation of sections 810.02(1) and 810.02(2)(a), Florida Statutes (1998) and attempted sexual battery in violation of section 794.011(5) and section 777.04, Florida Statutes (1998)....

...of Tromberg, Shore, Harrison & Safer, Jacksonville, for appellant. Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee. BOOTH, Judge. This cause is before us on appeal from appellant's conviction for sexual battery under Section 794.011(3), Florida Statutes, a life felony....

...Busch, Asst. Public Defender, for appellant. Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., for appellee. NIMMONS, Judge. Cooper, a person under 18 years of age, was charged by information with sexual battery upon a 10-year-old child pursuant to Section 794.011(2), Florida Statutes (1981), which provides that such an offense is a "capital felony." The jury found him guilty of the lesser offense of "assault with intent to commit sexual battery," which is actually an aggravated assault under Section 784.021(1)(b), Florida Statutes (1981)....

...l crimes and fall when the death penalty is abolished. Cf. Reino v. State, 352 So.2d 853, 857 (Fla. 1977); Donaldson v. Sack, 265 So.2d 499 (Fla. 1972); compare Rowe v. State, 417 So.2d 981 (Fla. 1982). We are simply not persuaded that the fact that Section 794.011(2) defines sexual battery of a child 11 years of age or younger as a "capital felony" means, as appellant urges, that the above procedural requirements are still applicable notwithstanding the fact that the capital feature of the crime has been effectively eliminated. Appellant relies in part upon Milliken v. State, 398 So.2d 508 (Fla.5th DCA 1981), which held that a charge of sexual battery under Section 794.011(2) must be by indictment because the charged offense is a capital felony....

...of the Buford decision, death was never a possible penalty for appellant Cooper. The Fourth District has held in Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983), that the defendant who, as here, was tried on a charge of child sexual battery under Section 794.011(2), was not entitled to a 12-member jury....

...after Buford and that the mandatory penalty of life imprisonment with no parole eligibility for the first 25 years, as provided under Section 775.082(1), was not applicable. We are not called upon to decide the appropriate post- Buford penalty under Section 794.011(2) inasmuch as the defendant in the instant case, as we have noted, was convicted of the lesser offense of aggravated assault....

...However, we note that our sister court in Rusaw v. State, 429 So.2d 1378 (Fla. 2nd DCA 1983), although agreeing with Hogan's conclusion that a 12-member jury was no longer required, disagreed with Hogan as to the appropriate penalty and held that one convicted under Section 794.011(2) must be sentenced to life imprisonment with no eligibility for parole for the first 25 years pursuant to Section 775.082(1), citing Buford, supra, 403 So.2d at 954. See also Duke v. State, 444 So.2d 492 (Fla. 2nd DCA 1984). The Third District agrees with Rusaw with respect to the appropriate sentence under Section 794.011(2)....

...There being no error in the state's reliance upon an information as the appropriate charging document and in the use of a *69 6-member jury, the judgment is AFFIRMED. We certify the following as a question of great public importance pursuant to Fla.R. App.P. 9.030(a)(2)(A)(v): IN A PROSECUTION FOR SEXUAL BATTERY UNDER SECTION 794.011(2) WHERE DEATH IS NOT A POSSIBLE PENALTY BECAUSE OF THE HOLDING IN BUFORD V....

...Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee. SHARP, Judge. McIlwain appeals from a final judgment entered after a jury verdict adjudicating him guilty of a sexual battery on a seventeen year old boy, pursuant to section 794.011(4), Florida Statutes (1977)....

...reverse them. We find no basis whatever for reversal here, except a possible difference of opinion as to what the facts before the jury reveal. McKee v. State, 159 Fla. 794, 33 So.2d 50, 52 (1947). AFFIRMED. ORFINGER and COBB, JJ., concur. NOTES [1] § 794.011(1)(d), Fla....

...[6] Berezovsky v. State, 335 So.2d 592 (Fla. 3d DCA 1976), aff'd in part and rev'd in part, 350 So.2d 80 (Fla. 1977); O'Bryan v. State, 324 So.2d 713 (Fla.1st DCA), cert. denied, 336 So.2d 1184 (Fla. 1976); Johnson v. State, 118 So.2d 806 (Fla. 2d DCA 1960). [7] § 794.011(1)(h), Fla....

...State, 336 So.2d 1281 (Fla. 2d DCA 1976), cert. denied, 345 So.2d 422 (Fla. 1977). [10] Cf. Hicks v. State, 362 So.2d 730 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 461 (Fla. 1979); Spencer v. State, 332 So.2d 30 (Fla. 1st DCA 1976) (issue of degree of force under § 794.011(3) was a jury question).

...For this reason, we reverse his sentence and remand for resentencing. Approximately eighteen years after the fact, Sandoval's great nephew accused Sandoval of fondling him when the nephew was seven years old. Based on the nephew's testimony at trial, the jury convicted Sandoval of capital sexual battery. See § 794.011(2), Fla....

...Accordingly, I dissent. NOTES [1] Rule 59G-4.150(4)(a)12 provided: Inpatient hospital care for induced abortions and related procedures shall be reimbursed only to save the life of the mother or, when the pregnancy is the result of rape (as defined in Section 794.011, F.S....

...Holt, Public Defender, and Marcia Perlin, Assistant Public Defender, Tampa, for Petitioner. Robert A. Butterworth, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Respondent. PER CURIAM. A.D.W., the petitioner, was charged with sexual battery pursuant to section 794.011(2), Florida Statutes (1997)....

...Boland called a deputy at the Lee County Sheriff's Office on September 4, 2002, and reported that a local doctor was molesting his own children. The children were quite young. If the reports had been correct, the doctor would have been guilty of capital felonies. See § 794.011(2)(a), Fla....

...After careful consideration of the points raised by appellant and of the brief filed by the Assistant Attorney General, we have determined that only one of the allegations of ineffective assistance of counsel merits further consideration. Appellant was charged in a two-count information with sexual battery, under section 794.011(3), Florida Statutes, and with kidnapping under section 787.01(1)(a)2., Florida Statutes. The statutory provision with which we are concerned is section 794.011(3), which sets forth the offense of sexual battery committed by a threat to use a deadly weapon or the use of actual physical force likely to cause serious personal injury....

...Pursuant to the Schedule of Lesser Included Offenses in Florida Standard Jury Instructions (Criminal), the category 1 or "necessarily," lesser included offenses of subsection (3) sexual battery are: (1) battery, in violation of section 784.03, Florida Statutes; [3] and (2) sexual battery, in violation of section 794.011(5), Florida Statutes. [4] The offense of battery is a first degree misdemeanor, for which a maximum sentence of one year may be imposed. Section 775.082(4)(a), Fla. Stat. (1983). The offense of sexual battery under section 794.011(5) is a second degree felony punishable by a maximum sentence of fifteen years....

...1st DCA) approved by 492 So.2d 1071 (Fla. 1986); Weller v. State, 501 So.2d 1291, 1292 (Fla. 4th DCA 1986). On the basis of the record before this court, it appears the evidence in this case is consistent with and would support a finding of guilt on a section 794.011(5) charge....

...This court has held that "[i]t is inappropriate to have the state select portions of the record below to support the appealed order when the trial court has not previously done so." Thames v. State, 454 So.2d 1061, 1066 (Fla. 1st DCA 1984). Second, while conceding that the jury was not instructed as to section 794.011(4), Florida Statutes, the state attempts to interpret our opinion as meaning that instructions on category two offenses are not required....

...Whether a category two instruction should be given depends upon the circumstances of a given case. Gillespie v. State, 440 So.2d 8 (Fla. 1st DCA 1983), review denied, 475 So.2d 222 (Fla. 1985). While our opinion specifically addressed category one lesser included offenses of section 794.011(3), it did not rule out the possibility that a failure to request a category two lesser included offense would, in the circumstances of a particular case, constitute ineffective assistance of counsel....

...In our review of the original opinion pursuant to the state's motion for rehearing, we have discovered an error which resulted from our reliance upon an outdated copy of the schedule of lesser included offenses. Therefore, we correct the opinion filed November 5, 1987, in the following respect. Section 794.011(5), Florida Statutes is a category two lesser included offense of section 794.011(3), and is not a category one or "necessarily" lesser included offense of section 794.011(3), as stated in our opinion. *283 See Fla.Std. Jury Instr. (Crim.), Schedule of Lesser Included Offenses (May 1987). Except as modified hereby, we adhere to the original opinion filed in this case. NOTES [1] s. 794.011(3), Fla....

...er person against the will of the other; or (b) Intentionally causes bodily harm to an individual. (2) Whoever commits battery shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [4] s. 794.011(5), Fla....

...487, 20 So.2d 649 (1945) (taking from jury its obligation to determine any element of the offense is denial of due process); Williams v. State, 366 So.2d 817 (Fla. 3d DCA) (jury failure to make finding as to each element of offense not harmless error), cert. denied, 375 So.2d 912 (Fla. 1979). Section 794.011(2), Florida Statutes (1991), which Baker is alleged to have violated, provides: A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony......

...Omitting the age of the defendant in the charging document the State alleged: ... DEWITT HENRY BAKER ... did unlawfully and feloniously commit sexual battery upon A.H., a person less than twelve (12) years of age, by penetrating the VAGINA of A.H. with FINGER(S) and/or THUMB ... in violation of 794.011(2), Florida Statutes....

...ovision for a finding as to the defendant's age. Instead the jury was permitted to, and found the defendant "Guilty" only of "Sexual Battery as charged in the Information." Seeking to uphold the capital felony conviction, the State argues that under section 794.011 a person's age is relevant only to the means by which an offender should be punished and is not an element of the offense, relying on Jesus v....

...There was no contention in Jesus that the information failed to allege a capital offense or that the jury failed to find that the defendant was eighteen years of age or older. Jesus's sole contention was "that the state improperly relied on his statement in establishing his age for purposes of section 794.011(2)." Id....

...Because the statute charges in the same section, alternatively, a capital offense or a life felony, the pleading deficiency in this case was correctable by an interrogatory verdict which required the jury to make that finding. [3] By our holding that the defendant's age, in a section 794.011(2) case, is a factor that must be pleaded or found by the jury in a special verdict, we unavoidably raise the factor to the level of an element, in disagreement with Jesus....

...presentation of defense witnesses, we reverse and remand for a new trial. This case is based upon the accusations of Bertram's niece that Bertram had sexual contact with her. In a two-count amended information, the state charged Bertram, pursuant to section 794.011(2), Florida Statutes (1991), with placing his penis in his niece's mouth and with placing his finger in her vagina....

...This is an appeal from an order dismissing a charge of sexual battery. The state charged appellee with committing sexual battery in the course of which he used physical force and violence not likely to cause serious personal injury in violation of section 794.011(5), Florida Statutes (1979)....

...be denied. State v. Hires, 372 So.2d 183 (Fla.2d DCA 1979). As in prosecutions under the old rape statutes, the state must prove the use of physical force which overcomes the will of the victim in order to convict a defendant of sexual battery under section 794.011(5)....

...We therefore quash the decision of the district court with orders to remand to the trial court for resentencing in accordance with this opinion. VanTassell was convicted of one count of sexual battery on a child over the age of eleven years by a person in a position of familial authority in violation of section 794.011(4)(e), Florida Statutes (1983)....

...State, 403 So.2d 956 (Fla.1981), compels the conclusion that fundamental error occurred which requires reversal of this case. In Ray, the defendant was charged with sexual battery with physical force not likely to cause serious personal injury. See § 794.011(5), Fla....

...The defendant's failure to properly object at trial should have been fatal to his argument in Levesque. It was not. Levesque also conflicts with Tolbert. In that case, Tolbert was charged with five counts of sexual battery using actual force likely to cause serious personal injury. See § 794.011(3), Fla....

...idence as to any lesser included offenses. Id. (citation omitted). Tolbert was consistent with Ray because aggravated battery, a second degree felony, is lesser in degree and penalty, than the type of sexual batteries charged, all life felonies. See § 794.011(3), Fla....

...Hoch alleges in his sworn motion that trial counsel advised him that he would only serve eight to ten years on his proposed seventy-five year term, and in reliance on that advice accepted the offer. He subsequently discovered that the plea post-dated the "Juny-Rios Martinez, Jr. Act" embodied in section 794.011(7), Florida Statutes (1992), which *848 eliminated basic gain time eligibility for sexual battery offenders; Hoch is a sex offender....

...ffense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence. (emphasis supplied) [1] § 784.011, Fla. Stat. (1983). [2] § 794.011(3), Fla. Stat. (1983). [3] § 794.011(4)(b), Fla....

...Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant. Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee. McCORD, Judge. Appellant appeals his jury conviction of sexual battery in violation of § 794.011, Florida Statutes....

...BASHANS on the 18th day of March, 1978, in Leon County, Florida did commit sexual battery upon Corrine Lines, a person 14 years of age by oral or vaginal penetration, without her consent while she was physically helpless to resist or did use physical force and violence not likely to cause serious personal injury, contrary to § 794.011, Florida Statutes....

...Appellant first contends that the indictment is fatally defective as to Count I and will not support a judgment of conviction because it fails to charge a specific offense. We agree. Count I does not charge a specific offense but charges two separate offenses-one a felony of the first degree, under § 794.011(4)(a), and the other a felony of the second degree, under § 794.011(5)....

...granted on the remaining charge of Count I. LARRY G. SMITH, J., concurs. WENTWORTH, J., concurs specially. WENTWORTH, Judge, concurring specially. I concur in the opinion of the majority that the evidence was insufficient to establish a violation of § 794.011(4)(a), Florida Statutes....

...Before BARKDULL, C.J., and HENDRY and NATHAN, JJ. NATHAN, Judge. Jimmy L. Harris was charged in a three count information with I breaking and entering a dwelling and unlawfully assaulting a person therein, II involuntary sexual battery in violation of Section 794.011(3), Florida Statutes, and III robbery....

...The court so adjudicated Harris and sentenced him to consecutive terms in the state penitentiary of 30 years on count I, and 50 years on count II. Sentence was withheld on count III. Two points are raised on appeal. The first point is that the court erred in denying the defendant's request for an instruction pursuant to Section 794.011(5), Florida Statutes (sexual battery involving the use of force not likely to cause serious personal injury) where such offense is a necessarily included offense of Section 794.011(3) (Sexual battery involving the use of a deadly weapon or use of force likely to cause serious personal injury)....

...nses which may or may not be included in the offense charged depending on the accusatory pleading and the evidence. Clearly, in this case, we are not concerned with the first or second categories. Therefore, we must determine whether subsection 5 of Section 794.011, Florida Statutes, is a lesser included offense of subsection 3, pursuant to either the third or the fourth category. Subsection 3 of Section 794.011, with which Harris was charged, provides that: A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actu...

...ely to cause serious personal injury against the victim, without using or threatening to use a deadly weapon. However, under the facts presented in this case, the element of actual physical force was neither alleged nor proved, and the conviction on Section 794.011(3), is supported by proof of use or display of a deadly weapon....

...h Penalty Act. 28 U.S.C. § 2244(d). We affirm. I. BACKGROUND A Florida jury convicted Espinosa of two counts of sexual battery on a child under the age of 12 by a person 18 years of age or older, Fla. Stat. § 794.011(2)(a). A judge sentenced him to consecutive life sentences....

...tandard jury instructions covering "familial or custodial" sexual acts do not define such authority. Recently, however, in Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), this Court interpreted the meaning of "familial or custodial" as used in section 794.011(4)(e), that statute being amended in 1984 and renumbered as section 794.041....

...The supreme court subsequently approved the opinion in Dailey at 488 So.2d 582. Accordingly, the cause is remanded for that purpose. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. ERVIN and BARFIELD, JJ., concur. NOTES [1] Section 794.011(4)(e), Florida Statutes (1983) provides: (4) A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, under any of the following circumstances shall be guilty of a felony of the first degree, punishable as provided in s....

...The question of entitlement to a twelve member jury has been resolved against appellant's position in State v. Hogan, 451 So.2d 844 (Fla. 1984). The analysis used in Hogan would appear to apply equally to the question of charging the offense of sexual battery under section 794.011(2), Florida Statutes (1977-1983), by information as opposed to indictment. This court has previously decided the issue adversely to appellant in Cooper v. State, 453 So.2d 67 (Fla. 1st DCA 1984). As in Cooper, we again certify to the Supreme Court the following question: IN A PROSECUTION FOR SEXUAL BATTERY UNDER SECTION 794.011(2), FLORIDA STATUTES (1977-1983), WHERE DEATH IS NOT A POSSIBLE PENALTY BECAUSE OF THE HOLDING IN BUFORD V....

...Butterworth, Atty. Gen., Cynthia Shaw, Asst. Atty. Gen., Tallahassee, for appellee. WOLF, Judge. This is an appeal from a judgment and sentence finding the appellant guilty of four counts of sexual battery on a child under 12 years of age, in violation of section 794.011(2), Florida Statutes, and of one count of lewd and lascivious act in the presence of a child, in violation of section 800.04, Florida Statutes....

...exual battery convictions. The information under which the appellant was charged alleged that he committed sexual battery against K.L. and T.C., ages 2 1/2 and 2, respectively, by penetrating the vagina of each child with his finger, in violation of section 794.011(2), Florida Statutes....

...*1319 Florida law defines sexual battery to mean: 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, a sexual battery does not include an act done for a bona fide medical purpose. § 794.011(1)(h), Fla. Stat. (1989). In Furlow v. State, 529 So.2d 804 (Fla. 1st DCA 1988), the appellant had been convicted of a violation of section 794.011, Florida Statutes....

...Williams v. State, 53 Fla. 84, 43 So. 431 (1907). While Williams dealt with the crime of rape, this rule has remained unchanged since implementation of Florida's modern sexual battery statute. In Pride v. State, 511 So.2d 1068 (Fla. 1st DCA 1987), section 794.011(1)(h), Florida Statutes, was construed to mean, "any penetration, no matter how slight, constitutes a completed sexual battery." Id....

...Defendant's first point on appeal is that the 30 year sentence on the attempted sexual battery charge is in excess of the legal maximum sentence. We agree. Defendant was convicted of attempted sexual battery with force likely to cause serious personal injury. Section 794.011(3), Florida Statutes (1981), provides that a person who uses physical force likely to cause serious personal injury while committing a sexual battery is guilty of a life felony....

...his. He denied penetrating her, or any intent to do so. The evidence of actual penetration was unclear. If believed by the jury, Gaffney's version constitutes the crime of lewd and lascivious conduct. But it would not qualify as sexual battery under section 794.011(2), because the essential elements of (1) penetration or (2) injury and attempt to commit sexual battery are missing. Section 800.04, Florida Statutes (1985) provides: Any person who: (1) Handles, fondles, or makes an assault upon any child under the age of 16 years, in a lewd, lascivious or indecent manner, (2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery ....

...the procedural due process safeguards espoused in Jenkins v. State, 444 So.2d 947 (Fla. 1984), apply to the imposition of costs under Section 27.3455, Florida Statutes (1985). Lawton v. State, 492 So.2d at 407. [1] § 800.04, Fla. Stat. (1985). [2] § 794.011(2), Fla....

...84, and February 7, 1986, and that the victim was under the age of eleven; and count three alleged a time period between February 8, 1986, and February 7, 1987, and that the victim was less than twelve years of age. Each count alleged a violation of section 794.011(2), Florida Statutes, and each count was identical in alleging that Morgan committed sexual battery “by penetrating or having union with [victim’s] mouth or vagina with his penis or by penetrating [victim’s] vagina with his fing...

...the guidelines. We find that rationale puzzling in light of the fact that at the time Morgan allegedly committed his offenses (the Amended Information alleges between 1981 and 1987), sexual battery on a child under the age of twelve in violation of section 794.011(2), Florida Statutes, was considered a capital crime (albeit not punishable by death) and was therefore not subject to the sentencing guidelines....

...be committed, and he should not be heard to complain about the fact that the Amended Information did not charge the specific act he was found guilty of committing. The premise of the State’s argument is correct that sexual battery in violation of section 794.011(2), Florida Statutes, may *512 be committed in various ways. See § 794.011(l)(f), Fla....

...Gen., Tallahassee, Paul H. Zacks and Laura R. Morrison, Asst. Attys. Gen., West Palm Beach, for appellee. BERANEK, Judge. This is an appeal by defendant from his conviction and sentence for involuntary sexual battery on a child under eleven years of age pursuant to Section 794.011(2), Florida Statutes (1977)....

...rnoon—with her consent, brought her to his home, and engaged in illicit sexual activity with her. Pursuant to a plea agreement with the trial court, which the state opposed, Whiting pleaded no contest to and was adjudicated guilty of a violation of section 794.011(8)(b), Florida Statutes (1995), which provides that a person who is in a position of authority over a child under eighteen and who engages in conduct defined as sexual battery with that child while that child is twelve or older—regar...

...To consider consent as a mitigating factor in this instance would be particularly egregious, since illicit sexual activity with a child over whom one has an official position of authority is a crime, regardless of "the willingness or consent" of the child. See § 794.011(8)(b); Smith, 668 So.2d at 644 (consent cannot be a mitigating factor for committing a lewd act upon a child under section 800.04, because "irrelevance of consent as a defense is an inherent component of the crime")....

...*741 We affirm the convictions, but vacate the sentences and remand for resentencing. There is no merit to appellant's contention that the original charges of sexual battery upon a person 11 years of age or younger by a person over the age of 18 should have been presented by indictment rather than by information. Although section 794.011(2), Florida Statutes (1983) classifies this crime as a "capital felony," it is not capital in the sense that a defendant might be put to death. Buford v. State, 403 So.2d 943 (Fla. 1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). Because the death penalty is no longer possible for crimes charged under section 794.011(2), a twelve person jury is not required when a defendant is tried under that statute....

...Lawrence E. Lyman, St. Petersburg, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee. OTT, Judge. Appellant was convicted of three counts of involuntary sexual battery in violation of Section 794.011(4)(e), Florida Statutes....

...He appeals on two grounds that arise from a ruling of the trial court that similar fact evidence was relevant to the material issues framed by the charges, was therefore admissible into evidence and constituted a proper subject for appropriate comment by the prosecutor. We affirm. Section 794.011(4)(e), Florida Statutes provides in relevant part: (4) A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, ......

...Section 800.04, Florida Statutes (1989), pertaining to lewd and lascivious acts, punishes [a]ny person who ... (1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner; (2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years... . ... . without committing the crime of sexual battery... . Section 794.011(1)(h), Florida Statutes (1989), defines "sexual battery" as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by *119 any other object......

...STONE, Judge. We reverse an order dismissing two sexual battery charges and discharging the defendant. It was error to conclude that the facts as developed on the defendant's sworn motion to dismiss cannot support a sexual battery conviction under either section 794.011(4)(a) or section 794.011(5) of the Florida Statutes....

...The patient pulled away, immediately turned around, and saw the defendant with his penis exposed. The trial court concluded that those facts, if proven, would not be sufficient to convict Sedia of any sexual battery under Florida law. Count I of the information alleges a violation of section 794.011(4)(a), Florida Statutes, which provides: A person who commits sexual battery upon a person 12 years of age or older, without that person's consent... is guilty of a felony of the first degree ... when the victim is physically helpless to resist. (emphasis added) Section 794.011(1)(e) defines the term "physically helpless" as unconscious, asleep, or for any other reason physically unable to communicate an unwillingness to an act." Victims are not considered "physically helpless to resist" when they are able t...

...1st DCA), cert. denied, 479 U.S. 1012, 107 S.Ct. 659, 93 L.Ed.2d 713 (1986). In so holding, we do not mean to imply that all people attacked from behind fall within the scope of the statute. Count II of the information accused Sedia of violating Florida Statute 794.011(5)....

...intent. Id. at 1250. Here the legislature left no doubt as to its initial intention. In April of 1992, the legislature enacted section 794.005 of the Florida Statutes, clarifying that the only force the state must prove to convict a defendant under section 794.011(5) is the force inherent in the penetration. The statute states: The legislature ... never intended that the sexual battery offense described in 794.011(5) require any force or violence beyond the force and violence that is inherent in the accomplishment of "penetration" or "union ..." (emphasis added) Sedia's only argument with respect to his interpretation of the statute is that the Florida Supreme Court, in Gould v. State, 577 So.2d 1302, 1305 (Fla. 1991), assumed that more force than that inherent in the act of penetration is needed to convict a defendant under section 794.011(5)....

...egislature's statement of intent. See Lowry, 473 So.2d at 1249-1250. The state need not prove that the defendant used more physical force than merely the physical force necessary to accomplish sexual penetration in order to convict a defendant under section 794.011(5)....

...*536 The dismissal and discharge are reversed and the cause remanded for further proceedings. DELL, J., concurs. FARMER, J., concurs in part and dissents in part with opinion. FARMER, Judge, concurring and dissenting. I disagree with the reversal as to the charge under section 794.011(4)(a), Florida Statutes (1991)....

...Where the one meaning is just as plausible as the other, we are obliged by section 775.021(1), Florida Statutes (1991), to adopt that construction which favors the accused, not the one adopted by Judge Stone which favors the State. I agree with his analysis of the charge under section 794.011(5), Florida Statutes (1991), and therefore concur in the reversal as to it only....

...ON MOTION FOR REHEARING PER CURIAM. Appellee's motion for rehearing is denied. However, our opinion of January 13, 1993 is modified to add the following provision as a final paragraph. We certify the following question to the supreme court: MAY A DEFENDANT BE CONVICTED UNDER SECTION 794.011(4)(a), FLORIDA STATUTES, WHERE THE FACTUAL BASIS FOR CONCLUDING THAT THE VICTIM WAS UNABLE TO COMMUNICATE AN UNWILLINGNESS TO PARTICIPATE IN THE SEXUAL ACT WAS THE VICTIM'S INABILITY, BY VIRTUE OF THE CIRCUMSTANCES, TO OBSERVE THE DEF...

...Jorandby, Public Defender, and Debra Moses Stephens, Asst. Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Sr. Asst. Atty. Gen., West Palm Beach, for appellee. PARIENTE, Judge. Defendant was charged with sexual battery, in violation of section 794.011(2), Florida Statutes (1991), and two counts of lewd and lascivious assault upon a child less than 16 years of age, in violation of section 800.04, Florida Statutes (1991)....

...Count I of the Second Amended Information charged Coley and codefendant Bullington with committing "sexual battery upon S.E.M., a fifteen-year-old juvenile, without the victim's consent, while the victim was physically helpless to resist, contrary to Section 794.011(4)(a), (d), Florida Statutes...." [3] Coley argues that the State failed to prove essential elements of the crime — that the victim was "physically helpless to resist" within the meaning of the statute and that the sexual acts took place without S.E.M.'s consent. We agree. The elements of a sexual battery under paragraph 794.011(4)(a), Florida Statutes (1989), are as follows: (1) a sexual battery as defined by section 794.011(1)(h), Florida Statutes ..., is committed; (2) The act was not consented to; and (3) The victim was physically helpless to resist....

...[4] The statute gives "physically helpless to resist" an unusual and very limited definition. "The term `physically helpless' means that a person is unconscious, asleep, or for any reason physically unable to communicate unwillingness to an act. " § 794.011(1)(e), Fla....

..., of a physical inability to communicate unwillingness. [9] Coley's conviction of sexual battery on a person physically helpless to resist must be reversed. [10] IV. Given that there is insufficient evidence to support the conviction under paragraph 794.011(4)(a), Florida Statutes, the next question is whether the offense may be reduced to a lesser included offense under authority of section 924.34, Florida Statutes (1989)....

...State , the Florida Supreme Court held that the statute only allows an appellate court to reduce the offense to a necessarily included lesser offense, not to a permissive lesser included offense. 577 So.2d at 1304-05 & n. 6. [11] Gould also holds that the necessarily lesser included offense for paragraph 794.011(4)(a) is battery....

...American Law Institute, Model Penal Code and Commentaries Part II, § 213.1, at 317 (1980). The Florida sexual battery statute provides that evidence of mental incapacity resulting from involuntary drug or alcohol consumption "is admissible to prove that the consent was not intelligent, knowing, or voluntary... ." § 794.011(6), Fla. Stat. (1989); id. § 794.011(1)(a), (c)....

...The theory of the statute is that defendant has administered the drug or alcohol without the consent of the victim, and accordingly the defendant is held accountable where the drug or alcohol renders the victim "temporarily incapable of appraising or controlling his or her conduct... ." Id. § 794.011(1)(c)....

...n or in the presence of a child, in violation of section 800.04, Florida Statutes (1989). That crime is a second degree felony in which consent is not a defense and ability to communicate is not an issue. The State elected to proceed under paragraph 794.011(4)(a), Florida Statutes (1989), a first degree felony....

...their convictions. II. GENERAL FACTS The information filed against the defendants charges both Coley and Bullington with the following crimes: (1) sexual battery upon a fifteen-year-old victim while she was physically helpless to resist, contrary to section 794.011(4)(a)(d), Florida Statutes; (2) conspiracy to commit anal sexual battery; and (3) conspiracy to commit oral sexual battery....

...In any event, the majority fails to address why the graphic testimony of the victim is insufficient to convict; why her assertion that she did not consent is unbelievable; and why the majority shifts the burden from appellant to the victim. A. CONSENT Consent is defined in Section 794.011(1), Florida Statutes (1989): The term "consent" means intelligent, knowing, and voluntary consent and shall not be construed to include coerced submission....

...) give a valid consent; (2) communicate unwillingness to participate in the acts; and (3) withdraw her initial consent. However, the majority fails to consider that one's ability to speak is separate and distinct from one's ability to "communicate". Section 794.011 takes into account such an inability to "communicate" based on the statute's definition of "mentally incapacitated": "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic or intoxicating substance administered to that person without his or her consent or due to any other act committed upon that person without his or her consent. § 794.011(1)(c), Fla....

...PHYSICALLY HELPLESS TO RESIST The majority's reversal of the defendant's sexual battery conviction is predicated on Coley's contention that the State failed to prove an essential element of the crime; to-wit, that the victim was "physically helpless to resist" within the meaning of section 794.011(1)(e)....

...I cannot agree. The majority opinion has improperly reweighed and re-evaluated the evidence contrary to this court's authority. Tibbs v. State, 397 So.2d 1120 (Fla. 1981), affirmed sub. nom., Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Section 794.011(1)(e) provides: The term "physically helpless" means that a person is unconscious, asleep, or for any reason physically unable to communicate unwillingness to an act....

...4th DCA *1033 1993) (jury could reasonably conclude that victim had no opportunity to communicate her unwillingness to have sexual intercourse with defendant before the alleged penetration). The majority fails to address that the victim was "physically helpless" to resist, as defined by the statute in its definitional section 794.011(1)(e), because she was sometimes unconscious, and at all times intoxicated....

...Further, I find that the State proved that the victim was physically helpless to resist within the meaning of the statute, during those episodes when she "blacked out" and was unconscious, or was unable to communicate her unwillingness because of her intoxication. § 794.011(1)(e), Fla....

...s imposed on her? Accordingly, any sexual acts perpetrated on the child, after the child's forced ingestion of additional drugs, conform to the statutory definition of "physically helpless to resist" and are sufficient to sustain Coley's conviction. § 794.011(4)(a), Fla. Stat. (1989). D. SUFFICIENCY OF EVIDENCE Coley was charged, tried, and convicted of violating section 794.011(4), Florida Statutes....

...Defendant committed an act upon victim in which the anus, vagina of victim was penetrated by an object. 3. a. Victim was physically helpless to resist. * * * * * * *1034 4. The act was committed without the consent of victim. Florida Standard Jury Instructions in Criminal Cases, § 794.011(4), Fla....

...However, the majority in Bullington, as the majority in Coley, ignores the effect that this initial intoxication had on the validity of the initial consent. As discussed in the consent section of my dissent to Coley, I can find no valid consent in light of the child's experience, age and intoxication. § 794.011(1), Fla....

...y's trial indicating intermittent unconsciousness by the victim or physical inability to speak. The dissent also relies on the testimony of "a friend of the victim," Theresa Smith. Smith did not testify at Coley's trial. [3] A violation of paragraph 794.011(4)(a) is a first degree felony....

...fact does not meet the requirements of the statute. The question is physical ability or inability to communicate unwillingness at the time of the acts in question. [10] Coley argues an additional basis for reversal of the conviction under paragraph 794.011(4)(a) — that the evidence was insufficient to show absence of consent by S.E.M....

...the permissive lesser included offense of lewd, lascivious or indecent assault or act upon a child pursuant to section 800.04, Florida Statutes (1989). [12] Effective for offenses committed on or after April 8, 1992, sexual battery as defined in subsection 794.011(5), Fla....

...nterpretation). [13] The sexual battery statute provides: Evidence of the victim's mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary; and the court shall instruct the jury accordingly. Id. § 794.011(6)....

...ing or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered to that person without his or her consent or due to any other act committed upon that person without his or her consent. Id. § 794.011(1)(c) (emphasis added)....

...We answer in the *208 negative and quash the decision of the district court. Following reversal of an earlier conviction and remand of the case by the First District Court of Appeal, Heuring entered into a plea agreement with the state. The state agreed to nolle prosequi one count of sexual battery, proscribed by section 794.011(2), Florida Statutes (1983), in return for Heuring's plea of nolo contendere to one count of sexual battery in violation of section 794.011(4)(e)....

...a secure facility for long-term control, care, and treatment." State v. White, 891 So.2d 502, 502-03 (Fla.2004). The first element was not disputed, as Shaw was previously convicted of sexual battery against his nine-year-old brother in violation of section 794.011, Florida Statutes....

...Rehearing Denied September 14, 1979. Dennis J. Plews of Law Offices of Robert H. Schultz, Bradenton, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee. OTT, Judge. Appellant was charged under § 794.011(5), Fla....

...do not think Causey stands for the proposition that an accused can never waive or be estopped to raise such an error. AFFIRMED. HOBSON, J., concur. GRIMES, C.J., dissents with opinion. GRIMES, Chief Judge, dissenting. The appellant was charged under Section 794.011(5), Florida Statutes (1975), with sexual battery upon a person over the age of eleven without her consent and in the process thereof using physical force and violence not likely to cause serious personal injury....

...We find that the trial court did not err in admitting such evidence and reverse the order granting a new trial. Michael Troy Paille, was charged with two counts of sexual battery upon a person less than twelve years of age by a person under eighteen years of age, in violation of section 794.011(2), Florida Statutes (1985)....

...Bill McCollum, Attorney General; and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee. BROWNING, J. A jury found Lee Donton (Appellant) guilty of one count of sexual battery upon a victim with a mental defect, a violation of section 794.011(4)(e), Florida Statutes (2005)....

...act of which Appellant had actual knowledge or reason to believe; 2) that Appellant committed an act upon R.M. in which Appellant's penis had union with, or penetrated, the victim's anus; and 3) that the act was committed without R.M.'s consent. See § 794.011(1)(b), (1)(h) & (4)(e), Fla....

...Atty. Gen., for appellee. NIMMONS, Judge. Appellant was convicted, pursuant to trial by jury, of the following seven crimes upon his 14-year-old daughter: Counts II, III and IV — sexual battery by force not likely to cause serious personal injury (Section 794.011(5), Florida Statutes (1985))....

...ithout regard to the accusatory pleadings or the proof adduced at trial. Blockburger, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306; Carawan, 515 So.2d at 167. It is quite clear that such test is satisfied, for the crime of sexual battery under Section 794.011(5) requires the use of physical force and violence which is not an element of the crime of engaging in sexual activity by a person in familial authority under Section 794.041(2)(b); and the latter crime requires as an element that the offender be in familial authority over the victim, which is not a requirement of Section 794.011(5)....

...Under the Carawan analysis, the determination of whether there is any reasonable basis for concluding that there exists an intent contrary to the Blockburger presumption seems to turn heavily on whether the two offenses address essentially the same evil. 515 So.2d at 168. The evil which is addressed in Section 794.011(5) as well as throughout the other portions of Section 794.011 is the nonconsensual or forcible nature of the proscribed sexual acts, at least with respect to victims over 12 years of age. On the other hand, although the term "sexual activity" under Section 794.041 is defined the same as the *512 term "sexual battery" under 794.011, Section 794.041 seems not to be concerned at all with the forcible nature of the sexual acts but rather seeks to isolate for special sanction those who commit sexual acts upon persons over whom the offender stands in a position of familial or custodial authority....

...That may be so, but what such analysis does, at least in this instance, is to reveal, through close examination of the elements of the two crimes, the separate evils which the legislature apparently sought to address in the two statutes. Further, prior to 1984, the following subsection appeared in Section 794.011: (4) A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, under any of the following circumstances shall be guilty of a felony of the first degree, punishable as provided in s....

...submit. This subsection, which, significantly, included the element of coercion, was repealed by Chapter 84-86, Laws of Florida. In the same legislative act, the legislature created Section 794.041 [6] as a distinct section, separate and apart from Section 794.011, and, as previously noted herein, contains no requirement of coercion or violence....

...1037, 71 L.Ed.2d 319 (1982), our supreme court determined that imposition of the death penalty for this crime was so grossly disproportionate as to violate the Eighth Amendment proscription against cruel and unusual punishment. It was thereafter argued that the offense proscribed by section 794.011(2) was no longer in any sense "capital," but this position was rejected in Rusaw v....

...Public Defender, Daytona Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee. COWART, Judge. This is an appeal from a final judgment adjudicating Perez guilty of a sexual battery under section 794.011(4)(a), Florida Statutes....

...We do not have the authority to re-weigh or re-evaluate the evidence. Tibbs v. State, 397 So.2d 1120 (Fla. 1981), aff'd, Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The judgment of conviction is affirmed. DAUKSCH and ORFINGER, JJ., concur. NOTES [1] Section 794.011(4)(a) makes it a first degree felony to commit sexual battery upon a person over eleven years of age, without that person's consent "when the victim is physically helpless to resist." Section 794.011(1)(d) defines "physically helpless" to mean "that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act." [2] § 794.011(1)(d), Fla. Stat. [3] § 794.011(4)(a), Fla....

...He attributes his illegal detention to an erroneous computation by the Florida Parole and Probation Commission of his presumptive release date. According to the sworn petition, Taylor was charged with two counts of sexual battery, both counts under section 794.011(5), Florida Statutes, and one count of kidnapping under section 787.01....

...In his petition, Taylor asserts that Rigsby erroneously placed the offense of conviction in the "Greatest Most Serious II" category. Petitioner was sentenced to serve fifteen years for the offense of sexual battery, which in the information was sexual battery charged under section 794.011(5), sexual battery with force not likely to cause personal injury....

...[2] Only two offenses were within the category of "Greatest Most Serious — II": Murder II and Sexual Battery likely to cause serious harm. Sexual battery was separated into offense severity categories according to the seriousness of the sexual battery as determined under section 794.011, the sexual battery statute, i.e., sexual battery where victim under eleven years — "Greatest Most Serious IV;" sexual battery with use of force likely to cause serious bodily harm — "Greatest Most Serious — II;" sexual battery wit...

...Accordingly, the court concluded that the purpose of the new statute was to criminalize consensual sexual intercourse with an unmarried female between the ages of ten and sixteen, not to repeal the rape law. Id. The presumption of incapacity to consent is still embodied in current statutes defining sexual offenses. Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of incapacity to consent ends at age eleven....

...Thus, because lack of consent is an element of sexual battery under subsection (2)(a), the offense always includes a charge of simple battery as a necessarily lesser-included offense, just as it does under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 794.011....

...The English statute was old enough to become part of the common law in the United States; however, states eventually enacted statutes codifying the offense. 2 LaFave, supra. [2] In 1901, the legislature amended the statute to increase the age to eighteen. Wilson v. State, 50 Fla. 164, 39 So. 471 (1905). [3] Section 794.011, provides in pertinent part: (3) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony.......

...*347 GRIMES, Judge. Once again we face the difficult question of deciding when Williams rule testimony is admissible in a case involving sex crimes against a child. Appellant was charged with two counts of sexual battery against his stepdaughter in violation of section 794.011(4)(b) and (e), Florida Statutes (1979)....

...nded to explicitly admit similar fact evidence in child sexual molestation cases. In the instant case, we need not entirely rest our decision to affirm on the premise that Renee's testimony was admissible to establish a pattern of criminality. Under section 794.011(4), the state must prove the victim's lack of consent as an element of the crime....

...Additionally, Child B's testimony is further buttressed by the testimony of the nurse concerning the physical trauma. Accordingly, we hold the error to be harmless. We also hold the record contains sufficient evidence to support appellant's conviction of sexual battery against Child A and Child B under section 794.011(2), Florida Statutes (1991)....

...We reject appellant's contention that Child A's reference to her "private parts" did not sufficiently describe the child's vagina to convict him of the offense as charged in the information. The statute defines this particular sexual battery to mean "oral union with the sexual organ of another." § 794.011(1)(h), Fla....

...ial evidence to support appellant's conviction for unlawful union with the child's private parts. Likewise, we find no error in the trial court's denial of the motion for judgment of acquittal on Count II of the information, charging appellant under section 794.011(2) with commission of a sexual battery upon Child B by causing his finger to penetrate the victim's vagina. A sexual battery with "any other object" than a sexual organ occurs only if the victim's vagina is penetrated. § 794.011(1)(h), Fla....

...im during the late evening hours of February 2, 2001, Hunsicker, who the trial court found qualified as a HO and PRR, was sentenced as follows: The sentences imposed for the sexual battery charges alleged in counts one, two and three in violation of section 794.011(2), Florida Statutes (2001), were life imprisonment concurrently for each count....

...the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act; (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree.......

...On at least two prior occasions, this court has resolved cases that were controlled by Ray, without a proper analysis of that decision. See Mateo, 757 So.2d 1229; Wilburn, 840 So.2d 384. In Mateo, the defendant was charged with sexual battery using force likely to cause serious personal injury. 757 So.2d at 1230; see also § 794.011(3), Fla....

...1st DCA 1998) (holding that state appeal from an order denying a motion for written finding of sexual predator status should be made pursuant to a petition for writ of certiorari). Respondent entered a plea of guilty [1] to the first degree felony of sexual battery on a physically helpless victim, a violation of section 794.011(4)(a), Florida Statutes (1997), which was committed on August 23, 1997....

...Gen., and David Gauldin, Asst. Atty. Gen., Tallahassee, for appellee. LILES, WOODIE A. (Retired), Associate Judge. The defendant appeals his conviction of sexual battery with the use of actual physical force likely to cause serious personal injury [§ 794.011(3), Fla....

...ears, to-wit: Twenty-one years of age by vaginal penetration with his penis without the consent of [the victim], and in the process thereof used or threatened to use actual physical force likely to cause serious personal injury, contrary to sections 794.011(3), Florida Statutes." The jury, in turn, rendered a verdict which read: "We, the Jury, find the Defendant, Terry Lloyd Cotton, guilty as charged of sexual battery with the threat of or use of force likely to cause serious personal injury." Defendant was adjudged guilty of a violation of Section 794.011(3) and sentenced to a prison term of sixty years....

...Defendant correctly points out that there is no offense set out under the charge of sexual battery which includes both the threat of force likely to cause serious personal injury and the use of force likely to cause serious personal injury. There is no mention of threat of force likely to cause serious personal injury in Section 794.011(3). [1] Rather, Section 794.011(4)(b) is the *1289 portion of the statute covering the threat to use force. [2] Defendant thus urges that the jury found him guilty of both a life felony [§ 794.011(3)] and a felony of the first degree [§ 794.011(4)(b)]....

...1978); Holland v. State, 319 So.2d 577 (Fla. 1st DCA 1975). Under the facts of this case, we cannot conclude that defendant was misled by the information. For one, the information, despite the looseness of the language used, specifically notes a violation of Section 794.011(3), unlike the indictment in Bashans, which merely notes a violation of Section 794.011....

...by this Court for the offense charged is imprisonment for life, and the Court must impose at least thirty years of imprisonment." By this jury instruction defendant's counsel attempted to impress upon the jury the consequences of a conviction under Section 794.011(3), a life felony....

...This obvious appeal to the jury's inherent power to "pardon" the accused of the more serious crime indicates only too well that the defendant knew on which charge he was being tried. Thus, not only does the record contain nothing whatever to indicate that he did not *1290 know he was being tried for a violation of Section 794.011(3), but affirmatively demonstrates the opposite....

...It should be considered with respect to the indictment or information and the entire record. Chavers v. State, 45 So.2d 180 (Fla. 1950); Barnhill v. State, 41 So.2d 329 (Fla. 1949). Here, the evidence proffered overwhelmingly supports a finding of guilt of Section 794.011(3), unlike Bashans, where the evidence presented supported only a conviction of the lesser offense....

...She also sustained multiple bruises to the face, forehead, lower lip, jaw, her right arm, and left pectoral area. While this evidence supports both the threat of force and the actual use of force likely to cause serious personal injury, the trial judge almost verbatim tracked the standard jury instructions for Section 794.011(3) and the lesser-included offenses of sexual battery with force not likely to cause harm [5] and simple battery....

...nded to convict the defendant of sexual battery with the use of actual physical force likely to cause serious personal injury, and nothing else. The judgment and sentence of the trial court are AFFIRMED. SHIVERS and WENTWORTH, JJ., concur. NOTES [1] Section 794.011(3), Florida Statutes, reads: "(3) A person who commits sexual battery upon a person over the age of 11 years, without that person's consent and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony ..." [emphasis supplied] We are not here concerned with the use or threat to use a deadly weapon in the commission of the sexual battery. [2] Section 794.011(4)(b), Florida Statutes, states: "(4) A person who commits sexual battery upon a person over the age of 11 years, without that person's consent under any of the following circumstances shall be guilty of a felony of the first degree ......

...or a term of years not less than 30; "(b) For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment." [4] Id. [5] § 794.011(5), Fla....

...When trial judges fail to condemn improper argument, it becomes acceptable and thus repeated. Would placing a copy of Justice Terrell's advice on every counsel table and trial bench be helpful? I am not sure, but it might be worth a try. NOTES [1] § 794.011(5), Fla....

...FACTS AND PROCEDURAL BACKGROUND The district court explained the underlying facts as follows: Brenton McNeil pled nolo contendere to three counts of sexual battery of a child under the age of twelve by a person under the age of eighteen in violation of section 794.011(2), Florida Stat *57 utes (2006), which requires costs to be imposed under sections 938.08, 938.085, and 938.10; and one count of lewd or lascivious molestation in violation of section 800.04(5), Florida Statutes (2006), which requires costs to be imposed under section 938.10....

...and $404 pursuant to section 938.10(1). Id. at 275 . The trial court imposed costs according to the following 2006 statutes: 1 938.08 Additional cost to fund programs in domestic violence.—In addition to any sanction imposed for a violation of ... s. 794.011, or for any offense of domestic violence described in s....

...on pleads guilty or nolo contendere to, or is found guilty of, regardless of adjudication, a violation of s. 784.011, s. 784.021, s. 784.03, s. 784.041, s. 784.045, s. 784.048, s. 784.07, s. 784.08, s. 784.081, s. 784.082, s. 784.083, s. 784.085, or s. 794.011, the court shall impose a surcharge of $151....

...e day of the crimes does not meet this requirement. [5] And, it also appears that evidence in Morgan's case was already DNA tested, or if not, Morgan fails to describe it or its current location. AFFIRMED. THOMPSON and MONACO, JJ., concur. NOTES [1] § 794.011(3), Fla....

...The state and Hoover entered into a plea agreement which permitted Hoover to plead nolo contendere to a first-degree felony charge of sexual battery of a child over the age of eleven by a person in a position of familial or custodial authority over the victim, under section 794.011(4)(e), Florida Statutes (1983), punishable by a maximum sentence of thirty years....

...and impose the thirty-year sentence. The First District Court of Appeal, sua sponte, raised the issue of the plea's validity and found the trial court committed fundamental error in accepting Hoover's nolo contendere plea to the crime enunciated in section 794.011(4)(e)....

...However, the reasoning in those cases is generally equally applicable to the then existing law on rape. See State v. Bowden, supra . But cases involving acts of fellatio and cunnilingus now may be filed as sexual batteries under our statute. Florida Statute Section 794.011(1)(h) defines "sexual battery": The term "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; ......

...None of the three issues raised in this appeal from the convictions and sentences for those crimes has merit. The appellant first contends, citing Harris v. State, 338 So.2d 880 (Fla. 3d DCA 1976) that the sexual battery charge of which he was convicted, which is proscribed by Section 794.011(5), Fla. Stat. (1975), is not a lesser included offense of the one charged in the information, as defined by Section 794.011(3), Fla....

...Carroll, 378 So.2d 4 (Fla. 4th DCA), cert. denied, 385 So.2d 761 (Fla. 1980). We have jurisdiction to resolve this conflict. Art. V, § 3(b)(3), Fla. Const. Petitioner was charged with sexual battery upon a person eleven years of age or younger in violation of section 794.011(2), Florida Statutes (1979)....

...STATE of Florida, Appellee. No. 91-02695. District Court of Appeal of Florida, Second District. October 2, 1991. PER CURIAM. Pablo Colon appeals the summary denial of his motion for postconviction relief. We reverse. Originally Colon was charged with capital sexual battery. § 794.011(2), Fla....

...1978), we hold that the point is without merit. Appellant for his fifth point on appeal contends that he was convicted of an offense not charged in the information. *732 The information charged in this case charges appellant with an involuntary sexual battery as proscribed by Section 794.011(3), Florida Statutes (1975), which provides that: "A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses...

...penis into her vagina without her consent, and in the process thereof used actual physical force likely to cause serious personal injury ..." [Emphasis added.] Appellee requested that the trial court instruct the jury upon sexual battery pursuant to Section 794.011(4)(b), Florida Statutes (1975), which provides that: "(4) A person who commits sexual battery upon a person over the age of 11 years, without that person's consent, under any of the following circumstances shall be guilty of a felony...

...Further, appellee concedes that, because the information does not allege the use of threats, but merely relies upon the actual use of force, the use of threats under the facts of this case is not a category four lesser included offense. However, appellee does contend that Section 794.011, Florida Statutes (1975), is a degree crime, i.e., under category one of Brown. Appellee cites no authority in support of this contention. Further, the Florida Legislature has not designated Section 794.011 as a degree crime. Additionally, our independent research has not revealed any basis upon which Section 794.011 could be so interpreted....

...None of the sentencing documents include that notation as having been made. Finally, in regard to the departure reason relating to the amount of force and violence used against the victim, the sexual battery charges of which appellant was convicted were each sexual battery with great force as specified in section 794.011(3), Florida Statutes (1983)....

...5th DCA 1982), rev. denied, 426 So.2d 25 (Fla. 1983). Basically, we agree with the definition supplied by the First District in Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), and Stricklen v. State, 11 FLW 2092 (Fla. 1st DCA Oct. 2, 1986). In Coleman, section 794.011(4)(e), Florida Statutes (1983) was construed by Judge Ervin and the words "familial or custodial" were interpreted "to include within the statute's proscriptions any person maintaining a close relationship with children of the ages sp...

...Before HENDRY, SCHWARTZ and BASKIN, JJ. *1034 PER CURIAM. Edward Bates appeals a judgment of conviction and sentence of fifteen years imprisonment entered after a jury trial on the charge of sexual battery with the use of force not likely to cause serious injury under Section 794.011(5), Florida Statutes (1981)....

...Alonso, 345 So.2d 740 (Fla. 3d DCA 1977). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972). This appeal involves two criminal cases in which the defendants/appellants are charged with the crime of sexual battery, proscribed by section 794.011, Florida Statutes (1977)....

..."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 shall not include acts done for bona fide medical purposes. Section 794.011(1)(f), Florida Statutes (1977)....

...and vaginal sex and in the process thereof did use or threaten to use a deadly weapon, to-wit: knife, razor, or other sharp instrument or did threaten to use actual physical force likely to cause serious personal injury, contrary to Florida Statute 794.011(3) ......

...ual intercourse and in the process thereof did use or threaten to use a deadly weapon, to-wit: a gun, and did use actual physical force, to-wit: striking [G.P.] on head with a gun, likely to cause serious personal injury, contrary to Florida Statute 794.011(3) ..., Count II alleged that defendant Davis: [O]n the 13th day of February 1977 in the County of Palm Beach and State of Florida, did commit sexual battery upon [G.P.], a person over the age of eleven (11) years, without her consent, to-wit...

...use deadly weapons, to-wit: an axe, pitchfork, and did use actual physical force, to-wit: hitting [G.P.] in face with fist, cutting said person with pitchfork, and swinging an axe, likely to cause serious personal injury, contrary to Florida Statute 794.011(3) ......

...FACTS The State filed an amended information charging Appellant with two crimes: engaging in sexual activity with a child twelve years of age or older but less than eighteen, while standing in a position of familial or custodial authority, in violation of section 794.011(8)(b), Florida Statutes (2004) (count one); and unlawful activity by a person twenty-four years of age or older with a person sixteen or seventeen years of age, in violation of section 794.05, Florida Statutes (2004) (count two)....

...This issue focuses on the definition of "injury" under section 794.022(2), Florida Statutes (1983), which provides as follows: Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011....

...The state could have elected not to question the pediatrician about the child's abnormal genitalia but, having done so, appellant was entitled to rebut this evidence by showing that there could have been another cause. REVERSED and REMANDED for a new trial. COBB, C.J., concurs. COWART, J., dissents without opinion. NOTES [1] § 794.011(2), Fla....

...Brian Weiner appeals the imposition of two consecutive 10-year terms of probation following 5 years of incarceration and the imposition of a special condition during probation *393 that he abstain from the consumption of alcoholic beverages. We affirm. Weiner entered a plea of no contest to charges of sexual battery [§ 794.011(5), Fla....

...State, 542 So.2d 443, 444 (Fla. 5th DCA 1989); Petrillo v. State, 554 So.2d 1227 (Fla. 2d DCA 1990). The judgment and sentence are affirmed but with a correction to reflect that Weiner pled no contest to the second-degree felony *394 of sexual battery under section 794.011(5), not to a life felony under section 794.011(3)....

...l). AFFIRMED. COBB and PALMER, JJ., concur. NOTES [1] These two appeals were consolidated after being filed separately. The state's appeal 5D01-1872 was designated the primary appeal and Hamner's appeal 5D01-1902 was designated the cross-appeal. [2] § 794.011(2), Fla. Stat. (1993). [3] § 800.04(3), Fla. Stat. (1997). [4] § 794.011(2), § 777.04, Fla....

...Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant. Robert L. Shevin, Atty. Gen., and Patti Englander and George R. Georgieff, Asst. Attys. Gen., for appellee. PER CURIAM. Appellant was convicted of sexual battery contrary to F.S. 794.011(3), and was sentenced to twenty years imprisonment with credit for 171 days jail time....

...eged that appellant on the same date committed sexual battery upon Pearl Bartlett and that in the course thereof, he used or threatened to *610 use a deadly weapon or he used actual physical force likely to cause serious personal injury, contrary to Section 794.011(3), Florida Statutes (1975)....

...Randall Knight appeals from a judgment and sentence imposed after he was found guilty by a jury of charges that he sexually abused his stepdaughter. The amended information charged Knight with two counts of sexual battery upon a child under the age of twelve in violation of section 794.011(2), Florida Statutes, and one count of sexual activity while in position of familial *1183 authority in violation of section 794.041(2)(b)....

...return the State *386 dismissed a charge of sexual battery (Count I). Count I, which was nolle prossed, charged that the defendant committed a sexual battery upon a child less than 12 years of age "by vaginal penetration, contrary to Florida Statute 794.011." Count II charged that O'Bright did unlawfully handle, fondle, or make an assault upon a named child under the age of 16 years "in a lewd, lascivious, or indecent manner, by fondling her genitals and having her fondle his genitals, without committing the crime of sexual battery, contrary to Florida Statute 800.04(1)." Florida Statute 794.011, in pertinent part, reads: (1) Definitions: ........

...lewd and lascivious assault in violation of section 800.04, Florida Statutes (1985), I would affirm. Charged by indictment in one count with committing sexual battery on a child under twelve years "by vaginal penetration, contrary to Florida Statute 794.011," and in a second count with assault upon a child under sixteen years "in a lewd, lascivious, or indecent manner, by fondling her genitals and having her fondle his genitals, without committing the crime of sexual battery, contrary to Florida...

...(an offense that does not include penetration as an essential element), the statutory language "without committing the crime of sexual battery" in section 800.04 operates to specifically exclude conduct that amounts to sexual battery in violation of section 794.011....

...Section 800.04, as amended by chapter 84-86, section 5, Laws of Florida, [2] reads as follows: Any person who: (1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner; (2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree, punishable as provided in s....

...d remains to prohibit lewd and lascivious acts upon children, including sexual intercourse and other acts defined as sexual battery, without regard either to the victim's consent or the victim's prior chastity." Ch. 84-86, Preamble, Laws of Florida. Section 794.011(1)(h), referred to in subparagraph 2, contains the following definition: The term "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 b...

...it Involuntary Sexual Battery, in violation of 800.04." 443 So.2d at 179. The statutory reference to "intent to commit sexual battery" was construed by the district court as referring to the intent to commit one of the various offenses proscribed by section 794.011, such as voluntary and involuntary sexual battery, and meant that "the defendant did not intend to commit an act prohibited by Sections 794.011(2) through (5)." 443 So.2d at 181....

...ery" to " without committing the crime of sexual battery " (emphasis supplied) in the amendment to section 800.04 may appear to be confusing in light of the newly added subparagraph 2 expressly incorporating the definition of sexual battery found in 794.011(1)(h) (which includes penetration). The majority opinion has taken the view that, at least in this case, the phrase emphasized above should be taken to mean that the act of penetration which constitutes sexual battery under 794.011 is excluded from the offense of fondling under 800.04(1) because the offenses prohibited by sections 794.011 and 800.04(1) remain mutually exclusive....

...respective of consent and prior unchastity, I would conclude that one may be convicted of violating any subsection of section 800.04 even though the acts constituting fondling, as in this case, may also satisfy the definition of sexual battery under section 794.011(1)(h), provided only that the accused is not also convicted of the section 794.011(2) offense of involuntary sexual battery based on these same acts. See Lanier v. State, 443 So.2d at 185 (Jorgenson, J., dissenting). In effect, the legislature has made clear that a violation of section 800.04 is an alternative to, and perhaps a lesser included offense of, the offenses proscribed by section 794.011....

...sions O'Bright's finger penetrated her vagina. Although O'Bright denied that this occurred, the record contained sufficient evidence to support the trial court's finding of this explicit fact for purposes of sentencing. Moreover, the dropping of the section 794.011 involuntary sexual battery charge pursuant to the plea agreement should not be held to operate as a conclusive determination that such penetration did not occur during commission of the offense of lewd assault....

...ion with respect to scoring penetration for sentencing purposes since I would not view subsections 800.04(1) and (3), as distinguished from section 800.04(2), as defining offenses that are mutually exclusive of the sexual battery offenses defined in section 794.011....

...y of the several grounds cited for departure from the guidelines. I fully concur in certification of this question to the supreme court, but would, in view of appellant's argued effect of the dismissal of the involuntary sexual battery offense under section 794.011, restate the question as follows: WHETHER, IN CALCULATING THE SENTENCING GUIDELINES SCORESHEET FOR CATEGORY TWO SEXUAL OFFENSES, POINTS MAY BE ASSESSED FOR PENETRATION UNDER VICTIM INJURY IN SENTENCING FOR A CONVICTION OF LEWD ASSAULT...

...ng the offense. Ch. 84-86, § 8, Laws of Florida. [3] Cf., Hightower v. State, 488 So.2d 106 (Fla. 5th DCA 1986) (en banc). Applying the pre-1984 version of the statute, the majority concluded that section 800.04 was not a lesser included offense of section 794.011 crimes, adhering to the traditional view expressed in Ray v....

...Judge Sharp's dissenting opinion concluded that the amendment in chapter 84-86, although not applicable to that case, "makes clear not only that a child's lack of chastity or consent is no defense to this crime, but it also clearly provides that sexual battery as defined under section 794.011(1)(h) is a method by which the crime of section 800.04 may be committed." 488 So.2d at 111. Thus, Judge Sharp would uphold the instruction based on 800.04 as a lesser included offense of crimes under 794.011(2). It is not necessary, however, to decide in this case whether 800.04, as amended, is now a lesser included offense of 794.011 offenses (although it is difficult to imagine any argument that would support the contention it is not), for the amended statute clearly makes acts constituting sexual battery by penetration also a basis for conviction of offenses under 800.0...

...offender is eighteen years of age or older. The defendant had previously been convicted of lewd and lascivious assault on a child under the age of twelve, see § 800.04, Fla. Stat. (1990), and sexual battery on a minor under twelve years of age. See § 794.011, Fla....

...Once there, she told a BARC counselor about the events that transpired between Macias and herself in his van. As a result of this disclosure, BARC reported the incident, a police investigation ensued and the State ultimately brought charges against Macias for sexual battery under section 794.011(4)(c), (g), Florida Statutes (2003)....

...t of lewd and lascivious assault (Count V). In particular, Count IV charged that the defendant committed sexual battery upon a person less than 12 years of age by "causing his mouth to unite with the [victim's] vagina in violation of Florida Statute 794.011(2)." At trial, the child victim testified that the defendant, her father, had been touching and rubbing her private area and that this had been going on for "a long, long time." Several incidents related by the child involved the defendant rubbing his penis on the victim's vagina....

...rial by challenging the information. The defendant responds that the trial court correctly relied on the medical definition of vagina and correctly concluded that under this definition, the evidence did not establish the offense charged in Count IV. Section 794.011, Florida Statutes provides the following definition of "sexual battery": (1)(h) "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 a...

...aber's Cyclopedia Medical Dictionary, 783 (14th Ed. 1982); accord Dorland's Illustrated Medical Dictionary, 1433 (26th Ed. 1985). Under this strict medical definition of vagina, the only way the vagina could be reached is by penetration. However, subsection 794.011(1)(h) speaks of "vaginal penetration by, or union with, the sexual organ of another." The First District has explained the term "vagina" in holding that contact alone between the defendant's penis and the child victim's vagina is sufficient to constitute capital sexual battery....

...Weekly D660, ___ So.2d ___ [1995 WL 106305] (Fla. 4th DCA March 15, 1995). This analysis of the term "vagina" is correct. To adopt the medical definition of vagina would mean there could never be "union" with the vagina without penetration. This would render the language of section 794.011(1)(h) illogical and absurd....

...s vagina. See, e.g., Pineiro v. State, 615 So.2d 801 (Fla. 3d DCA 1993); Stone v. State, 547 So.2d 657 (Fla. 2d DCA 1989). In Hodak v. State, 555 So.2d 1326 (Fla. 5th DCA 1990), this court affirmed the defendant's conviction for sexual battery under section 794.011(1)(h) based upon evidence that there was contact between the defendant's tongue and the victim's "vaginal area." This court explained that: The defendant's tongue is encompassed by the word `oral' in the statute, and oral union with t...

...Neither the labia majora nor the labia minora are part of the vagina. A sexual battery by an object other than a sexual organ occurs only if the victim's vagina is penetrated. * * * * * * However, proof of mere "union with" the victim's vagina was insufficient because the state alleged penetration with fingers. § 794.011(1)(h), Fla....

...points for victim injury. Appellant was properly convicted of attempted sexual battery because he tried to force her to perform fellatio. The statute defines sexual battery as "oral ... penetration by, or union with the sexual organ of another ..." § 794.011 Fla....

...Gen., Andrea D. England, Asst. Atty. Gen., Tallahassee, for appellee. MICKLE, Judge. Thomas F. Wilson, Jr., appeals his conviction and sentences of capital sexual battery (on children under age 12) and lewd and lascivious assault in violation of sections 794.011(1)-(2) & 800.04(1), Florida Statutes (1989), respectively....

...for any of the offenses charged. Counts I, III, V and VII of the information charged Appellant with unlawfully committing sexual battery on, or injuring the sexual organs of during an attempt upon, a person less than 12 years of age, in violation of section 794.011(1)-(2)....

...*34 Counts I & II Count I charged Appellant with commission of sexual battery on (or injury of the sexual organs of during an attempt on) S.K., by oral, anal or vaginal penetration by, or union with, Appellant's penis. The information essentially tracks the language defining "sexual battery" in section 794.011(1)(h), Florida Statutes (1989)....

...She referred to the male doll's penis and the female doll's vaginal area as a "bad spot." Defense counsel specifically asked S.K. three different times whether Appellant had put his "bad spot" inside of her, to which she always responded "I do not know." Asked whether she knew the meaning of "union," see section 794.011(1)(h), S.K....

...A defendant needs only one qualifying prior conviction in order to be sentenced as a habitual violent felony offender. § 775.084(1)(b)(1), Fla. Stat. (1997). Hall was convicted of sexual battery with slight force which is a second-degree felony pursuant to section 794.011(5), Florida Statutes (1991), and sexual battery with great force which is a life felony pursuant to section 794.011(3), Florida Statutes (1991)....

...im. We affirm the trial court's order granting a new trial. As a result of a videotaped interview with the victim, appellee was arrested for suspected sexual abuse on August 22, 1986. Allen was charged on January 7, 1987 in count I with violation of section 794.011(2), Florida Statutes, sexual battery on a child under the age of 12; in count II with violation of section 800.04, Florida Statutes, lewd and lascivious assault on a child under the age of 16; and in count III with violation of section 794.011(2), Florida *1077 Statutes, sexual battery on a child under the age of 12....

...ion with." Defense counsel at trial had objected to that portion of the instruction. The information as to count III had alleged that sexual battery had been committed by the accused's insertion of his finger into the victim's vagina in violation of section 794.011(2), Florida Statutes....

...erred in its rulings that the child victim was competent to testify and that her hearsay statements were admissible. We agree with his arguments and, therefore, reverse. Kertell was charged by information with capital sexual battery in violation of section 794.011(2), Florida Statutes (1991), by placing his penis in or in union with his daughter's mouth....

...ant to the scene of the crime. However, neither the victim's house key nor a weapon were ever found. The amended information charges that appellant, in the process of committing the sexual battery, "threatened to use a deadly weapon, to wit: A Gun." Section 794.011(3), Florida Statutes (1985), makes it a crime to commit a sexual battery while the perpetrator "uses or threatens to use a deadly weapon." The charge against appellant was specifically limited to "threatened to use a deadly weapon." He was not charged with using a deadly weapon. It is also significant that section 794.011(3) does not require that a threat to use a deadly weapon be accompanied by the additional element of the display of that weapon....

...3d DCA 1982).) More particularly, no cases have addressed the issue of whether a threat to use a deadly weapon can be accomplished by words alone when the weapon is unseen and never discovered. We conclude, however, that such a threat with an unseen and undiscovered deadly weapon does satisfy the requirements of section 794.011(3) when the assailant, in order to carry out his assault, informs the victim he has such a weapon under circumstances that cause the victim to have reason to believe that the assailant has the ability to carry out his threat....

...State, 489 So.2d 131 (Fla. 5th DCA 1986). Therefore, we vacate the fine. CONVICTIONS AND SENTENCES AFFIRMED IN PART; SENTENCE FOR LEWD AND LASCIVIOUS ASSAULT VACATED AND REMANDED FOR RESENTENCING. UPCHURCH, C.J., and DAUKSCH, J., concur. NOTES [1] § 794.011(2), Fla....

...ed sexual battery, *204 which is reversed and remanded for resentencing consistent with this opinion. Appellant need not be present for the resentencing. AFFIRMED IN PART; REVERSED IN PART, with directions. BERANEK and WALDEN, JJ., concur. NOTES [1] Section 794.011(2), Florida Statutes (1981), provides: "A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss....

...s under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106? [5] The cause is reversed and remanded for new trial. ANSTEAD, C.J., and WALDEN, J., concur. NOTES [1] § 810.02(2), Fla. Stat. (1983). [2] § 787.01, Fla. Stat. (1983). [3] § 794.011(3), Fla....

...presence at trial, and assure the integrity of the judicial process. See Fla. R.Crim. P. 3.131. STEVENSON, GROSS and TAYLOR, JJ., concur. NOTES [1] Petitioner was charged with one count of sexual battery on a person with a mental defect, contrary to section 794.011(4)(e), Florida Statutes, a first degree felony, and one count of kidnaping, contrary to section 787.01(1)(a), Florida Statutes, a first degree felony punishable by life....

...However, in view of the deliberate misuse of the objection process by the prosecutor, we question whether that was a sufficient reaction or cure. State v. Murray, 443 So.2d 955 (Fla. 1984). REVERSED AND REMANDED. UPCHURCH, C.J., and ORFINGER, J., concur. NOTES [1] § 794.011(4)(b), Fla....

...nes scoresheet, and then repeated in the statutory modification enacted subsequent to Karchesky v. State, 591 So.2d 930 (Fla. 1992). § 921.001(8), Fla. Stat. (1992 Supp.). A sexual battery in Florida can be committed either by penetration or union. § 794.011, Fla....

...is opinion. AFFIRM Conviction; QUASH Sentence; REMANDED. GOSHORN, J., concurs. DAUKSCH, J., concurs specially without opinion. NOTES [1] § 800.04, Fla. Stat. (1987). [2] Blanton had been originally charged with sexual battery on a minor pursuant to section 794.011(2), a capital felony....

...Prospect, Asst. Atty. Gen., for appellee. ROBERT P. SMITH, Jr., Judge. Odom, charged with the offense of sexual battery upon a person over the age of 11 years, without that person's consent and when the victim was physically helpless *1080 to resist, Section 794.011(4)(a), Florida Statutes (1977), was convicted of having committed a lewd, lascivious or indecent assault on a child under the age of 14 years, Section 800.04, Florida Statutes (1977)....

...Since 1981, that Rule has provided that "[t]he judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense." See Boston v. State, 411 So.2d 1345 (Fla. 1st DCA 1982). In the present case, the only evidence proved a completed offense. [3] Section 794.011(1)(h), Florida Statutes, defines sexual battery as "oral, anal, or vaginal penetration by, or union with, the sexual organ of another......

...ms of the statute in order to charge an offense. Gibbs, 81 So.2d at 740. Where an information omits one or more of the essential elements of the crime, it fails to charge a crime under the laws of the state. State v. Gray, 435 So.2d 816 (Fla. 1983). Section 794.011, Florida Statutes, gives the following definition for "sexual battery": (1)(h) "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 a...

...1982); accord, Dorland's Illustrated Medical Dictionary 1433 (26th Ed. 1985). Given the strict medical definition of vagina, the only way the vagina could be reached is through penetration. However, the statute defining sexual battery provides for "vaginal penetration by, or union with, the sexual organ of another." § 794.011(1)(h), Fla....

...We affirm the assault judgments and sentences under counts II and III, but reverse the 800.04(2) conviction. Section 800.04(2) provides: *805 800.04 Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery. — Any person who: * * * * * * (2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or * * * * * * without committing the crime of sexual battery is guilty of a felony of the second degree... . The act defined as sexual battery under Section 794.011(1)(h), Florida Statutes, is therefore an essential element of a violation of Section 800.04(2)....

...The phrase "sexual battery" is defined as follows: The term "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. Section 794.011(1)(h)....

...Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. HARRIS, J. Glover was convicted of capital sexual battery. There is no dispute that the information charged Glover under the provisions of section 794.011(2)(a), Florida Statutes, by alleging that the victim was under twelve and the defendant was over eighteen....

...1986), stated that "emotional hardship can never constitute a clear and convincing reason to depart in a sexual battery case because nearly all sexual battery cases inflict emotional hardship on the victim," this court has construed that rationale to be most reasonably confined to sexual battery cases prosecuted under section 794.011(1)(h), Florida Statutes....

...Thompson, Asst. Public Defender and Baya Harrison, III of Fuller, Johnson & Harrison, Tallahassee, for appellee. WENTWORTH, Judge. The state appeals the dismissal of one count in an indictment that had charged Hansen with a capital-felony violation of section 794.011(2), Florida Statutes. The judge determined the foregoing statute was ambiguous when compared with section 794.011(3), and he resolved this perceived ambiguity in favor of the defendant by dismissing the count. We find no fatal ambiguity in these subsections, so we reverse. The pertinent parts of section 794.011 provide: (2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony......

...shall be guilty of a life felony... . On the day of the alleged sexual battery, the victim was approximately 11 years and 3 months old. She was within the plain language of section (2) of the statute addressing victims "11 years of age or younger." Section 794.011(3), addressing victims "over the age of 11 years," unequivocally protects victims who are not within the first defined class because they have reached 12 years of age....

...single counts of false imprisonment and grand theft of a motor vehicle. We find no merit to his first point on appeal but we agree that the trial court erred in adjudicating and sentencing him for three counts of first degree felony sexual battery. Section 794.011, Florida Statutes (1993) sets out the different degrees of sexual battery: (3) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to...

...The defendant was charged by information with three counts of sexual battery on a person 12 years of age or older without consent and with the use or threatened use of a deadly weapon or use of actual physical force likely to cause serious bodily injury. Each of the three counts reference section 794.011(3). As set forth in section 794.011(3), this offense constitutes a life felony....

...." *859 The jury was instructed in accordance with subsections (3) and (5) but was not instructed in accordance with subsection (4). Thus, when the jury convicted the defendant of the lesser included offenses of sexual battery, it did so pursuant to section 794.011(5), which is a second degree felony....

...Here, we find reasonable judges could impose disparate sentences in this case, including the one imposed here. Therefore, the trial judge did not abuse his discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Accordingly, this appeal is AFFIRMED. COBB, C.J., and UPCHURCH, J., concur. NOTES [1] § 794.011(5), Fla....

...Gen., Tallahassee, for appellee. PER CURIAM. Defendant Green appeals from his convictions of and sentences for burglary with the intent to commit an assault [§ 810.02, Fla. Stat.] and sexual battery with the use of or threat to use a deadly weapon [§ 794.011(3), Fla....

...elated to the nature and extent of the force used and as it related to the question of whether or not consent was ever given. In 1974 the legislature passed a new statute abolishing the crime of rape and establishing the new crime of sexual battery. Section 794.011, Florida Statutes (1974)....

...The petition for writ of habeas corpus was previously denied by unpublished order without prejudice to further proceedings in the trial court. We now provide the following opinion to set forth our reasoning for this ruling. Michael Rogers is charged with capital sexual battery pursuant to section 794.011(2)(a), Florida Statutes, in the Circuit Court for Wakulla County....

...dant's motion for a judgment of acquittal. Because we agree that this was error, and because we find insufficient evidence to sustain a conviction, we reverse the conviction and order that the defendant be discharged. The defendant was charged under section 794.011(2), Florida Statutes (1989), with two counts of sexual battery, to wit, oral union between his mouth and his grandson's penis....

...Pamela Jo Bondi, Attorney General, Jay Kubica, Assistant Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee. BENTON, C.J. Darnell Goings appeals his conviction and sentence for "sexual battery by familial or custodial authority," in violation of section 794.011(8)(b), Florida Statutes (1993)....

...s one thing, understanding that every sexual battery offense must, of necessity, involve the: "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. .. ." Section 794.011(1)(h), Florida Statutes....

...Wilson was charged with sexual battery involving a minor between the ages of twelve and eighteen while he was in familial or custodial authority. That crime was located in *1279 section 794.041(2)(b), Florida Statutes (1991), until 1993. In 1993, the statute was repealed and replaced by section 794.011(8)(b)....

...Henderson, Asst. Public Defender, Daytona Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee. COBB, Judge. Appellant, Leroy Harrielson, appeals his convictions of sexual battery in violation of section 794.011(2), Florida Statutes (1981), [1] and possession of a firearm by a convicted felon....

...and category two of the standard jury instructions. In S.L.S. v. State, 404 So.2d 1105 (Fla. 1st DCA 1981), review denied, 415 So.2d 1361 (Fla. 1982), relied upon by the appellant, the juvenile defendant was tried for attempted sexual battery under section 794.011(2), Florida Statutes (1979), the basis for the charge in the instant case....

...For the foregoing reasons, we believe the trial judge correctly refused the requested instruction in the instant case, and the defendant's judgment and sentence for sexual battery and for possession of a firearm by a convicted felon are AFFIRMED. FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur. NOTES [1] Section 794.011(2) provides: A person 18 years of age or older who commits sexual battery upon, or injuries the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss....

...Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellee. Before GODERICH and SORONDO, JJ., and NESBITT, Senior Judge. NESBITT, Senior Judge. After the completion of defendant's trial for sexual battery on a victim under twelve years of age, see § 794.011(2) Fla....

...However, because the State cannot prove that the error was harmless as to Count I, we reverse and remand for a new trial as to that count only. 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." § 794.011(1)(h), Fla....

...Each of the acts was charged by information to have occurred between June 1, 1988 and August 31, 1988. The child, S.S. was fourteen years old on June 7, 1988. Count I charged appellant with violating section 800.04(3) (lewd act upon a child) by committing an act defined as sexual battery under section 794.011(1)(h), Florida Statutes (1987) on S.S., who was then under the age of sixteen years, by penetrating or having union with the vagina of S.S....

...of ... custodial authority to a child," to a person who occupies that "custodial" position only in a "familial" context. The seminal case on this issue, Coleman v. State, 485 So.2d 1342 (Fla. 1st DCA 1986), discussed the similar predecessor statute, section 794.011(4)(e), Florida Statutes (1983), and concluded without any cited supporting authority, that "familial or custodial" included "any person maintaining a close relationship with children of the ages specified in the statute, and who lived...

...in a position of familial or custodial authority to the child within the prohibited ages. On the other hand, section 800.04 may be violated by "any person." Section 800.04 requires that if the act committed be the act defined as sexual battery under section 794.011(1)(h), that act must be committed without committing the crime of sexual battery. On the other hand, section 794.041 does not require, if the prohibited act committed is "sexual activity" (defined exactly as sexual battery in section 794.011(1)(h)) with a child by a person in a position of familial or custodial authority, that such act not constitute the crime of sexual battery....

...With all due respect to the majority and its carefully written opinion, consensual sexual activity with a teenager typically results from a "close relationship" with the adult. In the absence of a close relationship, the sexual activity is usually nonconsensual and is an act of sexual battery. Section 794.011(4), Fla....

...Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings in accordance with this opinion. PLEUS, C.J. and SAWAYA, J., concur. NOTES [1] Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). [2] Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). [3] § 794.011(8)(b), Fla....

...5th DCA 1998). In order to establish an attempt to commit a crime the State must prove: (1) a specific intent to commit a particular crime, and *1101 (2) an overt act toward its commission. See Geldreich v. State, 763 So.2d 1114 (Fla. 4th DCA 1999). Section 794.011(1)(h) of the Florida Statutes (1999) defines sexual battery as including "oral, anal, or vaginal penetration by, or union with the sexual organ of another ..." Here, in viewing the evidence in the light most favorable to sustain the j...

...priate sentence." I think the more precise question before us is whether willing participation, that is, consent, can be used as a mitigating factor for a downward departure from the sentencing guidelines when an adult is charged with a violation of section 794.011(8)(b), Florida Statutes *548 (1995). [1] Because I do not believe it can, I respectfully dissent. First, this statute, section 794.011(8)(b), and others like it are designed to further the state's compelling interest in protecting minors from sexual exploitation and sexual abuse from adults....

...[2] Unless the legislature acts in an unconstitutional manner, courts must permit the legislature to legislate. And unless the legislation is vague, the courts must apply the law as enacted by the legislature. Judge Thompson holds that there can be no mitigation of sentence under section 794.011(8)(b), Florida Statutes, because to do so would subvert the State's public policy of protecting minors....

...[the victim], a person less than 12 years of age, by placing his penis upon the vagina of [victim] and/or placing his mouth in or upon the vagina of [victim], and/or placing his finger in or upon the vagina of [victim], contrary to the provisions of section 794.011(2)(a), Florida Statutes....

...Count III of the information pertained to a subsequent time period and alleged similar multiple scenarios, each of which would constitute sexual battery by a person in familial or custodial authority upon a person 12 years of age or older but less that 18 years of age, in violation of section 794.011(8)(b), Florida Statutes....

...rging documents, multiple dates and acts, and statutory definitions. Whittingham v. *698 State, 974 So.2d 616, 618 (Fla. 4th DCA 2008). The statutory definition of sexual battery includes several alternatives, all of which constitute sexual battery. § 794.011(1)(h), Fla....

...and adequately placed Perry on notice that he was being charged with sexual battery. Accordingly, the information comported with due process. Price v. State, 995 So.2d 401 (Fla.2008); See also Fla. R.Crim. P. 3.140( o ). The definitions contained in section 794.011, Florida Statutes, contemplate proof of sexual battery by alternative methods....

...d on the sentencing guidelines scoresheet is to be resolved in favor of the defendant, we reverse. Following a jury trial, appellant was convicted of sexual battery by threatening to use force likely to cause serious personal injury, in violation of section 794.011(4)(b), Florida Statutes, and burglary of a dwelling with intent to commit an assault, in violation of section 810.02, Florida Statutes....

...Taylor, Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Assistant Attorney General, Tampa, for Appellee. NORTHCUTT, Chief Judge. A jury convicted Luman Bodie of capital sexual battery, § 794.011(2), Fla....

...Before BARKDULL, HAVERFIELD and HUBBART, JJ. PER CURIAM. Both of these appeals ultimately question the correctness of the orders of two trial judges, in effect holding that in order to be convicted of the crime of involuntary sexual battery pursuant to Section 794.011, Florida Statutes (1975) it is necessary that a defendant be charged with intent to attain sexual gratification and, necessarily, to be convicted thereof evidence would have to be introduced supporting such a charge. In Case No. 76-763, the State of Florida appeals from an order dismissing Count I of the Information charging the defendant, Alonso, with the commission of sexual battery *741 in violation of Section 794.011, Florida Statutes (1975)....

...76-1649, the State appeals from an order dismissing Counts I through IV of the Information against Barquet and West, charging them with sexual battery. In Count I of the Information, [1] Alonso was charged with having committed sexual battery in violation of Section 794.011, Florida Statutes (1975), in that Alonso falsely held himself out to be a duly licensed physician and performed a procedure to terminate the pregnancy of a fourteen-year-old girl, resulting in serious personal injury to her, for a fee of $100.00 or more....

...ntoxicating substance which physically and mentally incapacitated the victim. Upon the defendant's motion to dismiss, the court entered an order dismissing Count I on the ground that the Information failed to state an offense of sexual battery under Section 794.011, Florida Statutes (1975)....

...cts done for bond fide medical purposes. The only ground we are interested in, because of our ultimate holding in this opinion, is ground 1 of the judge's order. We affirm the actions of the trial judges in the entry of the orders here under review. Section 794.011, Florida Statutes (1975) was enacted in 1974 by the Legislature, to replace Florida's previous rape statutes....

...dded] Washington v. State, 302 So.2d 401, (Fla. 1974), quoting Brinson v. State, 278 So.2d 317 (Fla. 1st D.C.A. 1973). Although the rape statute has been replaced with the sexual battery law, this quoted language elucidates the policies underpinning Section 794.011, Florida Statutes (1975)....

...l. Rather, it is contended that the accused lacked proper licensure to engage in the practice of medicine and nursing. There is a complete absence of contentions tending to show an invasion of any alleged victim's sexual privacy, within the scope of Section 794.011, Florida Statutes (1975)....

...Therefore, the orders under review be and they are hereby affirmed. Affirmed. HUBBART, Judge (concurring). I concur in the court's able opinion in this case and would add a few additional comments. By its decision, the court has held that an essential element of the crime of sexual battery under Section 794.011, Florida Statutes (1975), is a criminal intent to obtain sexual gratification, which element the state must allege and prove....

...wful practice of medicine and one count of grand larceny by false pretenses. [2] The Information also charged the defendants with unlawful practice of nursing and medicine, unlawful termination of pregnancy, and grand larceny by false pretenses. [1] 794.011 Sexual Battery....

...without that person's consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. Section 794.011 Florida Statutes (1975)....

...Janet Reno, State's Atty., and Alan E. Krueger, Miami, for amicus curiae. BERANEK, Judge. This is a consolidated appeal involving two criminal cases in which the defendants/appellees are charged with the crime of sexual battery under Florida Statute 794.011(3)....

...al and vaginal sex and in the process thereof did use or threaten to use a deadly weapon, to wit: knife, razor, or other sharp instrument or did threaten to use actual physical force likely to cause serious person injury, contrary to Florida Statute 794.011(3) ..." In the case of State v....

...exual intercourse and in the process thereof did use or threaten to use a deadly weapon, to-wit: a gun, and did use physical force, to-wit: striking Gigi Pinder on head with a gun, likely to cause serious personal injury, contrary to Florida Statute 794.011(3), ..." In the Davis case defendant was also charged in Count II of the information as follows: "On the 13th day of February, 1977 in the County of Palm Beach and State of Florida, did commit sexual battery upon Gigi Pinder, a person over th...

...y weapons, to-wit: an axe, pitchfork, and did use actual physical force, to-wit: hitting Gigi Pinder in the face with fist, cutting said person with pitchfork, and swinging an axe, likely to cause serious personal injury, contrary to Florida Statute 794.011(3), ..." In both cases defendants moved to dismiss the information because of the absence of any specific allegation regarding sexual gratification....

...ent of a sexual battery. We disagree with the opinion of the Third District Court in State v. Alonso, supra , and with the subsequent case of Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978), which limits Alonso. The statute in question is F.S. § 794.011, entitled, "Sexual Battery." It replaces prior statutes dealing with the crime traditionally known as rape....

...The trial court committed prejudicial error when it introduced these books into evidence, and the State compounded that error in closing argument. We must order a new trial. Reversed and remanded. THREADGILL, A.C.J., and SALCINES, J., Concur. NOTES [1] See § 794.011(2), Fla....

...ORFINGER, Judge. The opinion issued on December 6, 1984 is withdrawn, and this opinion is substituted in its place. Defendant appeals his conviction on charges of burglary with an assault [section 810.02(3), Florida Statutes (1981)] and sexual battery [section 794.011(5), Florida Statutes (1981)]....

...to leave and had Lackey deliver her money to buy a plane ticket to Orlando. Count I charged the defendant with committing sexual battery upon a person 12 years of age or older, without that person's consent, while the victim was physically helpless to resist, in violation of section 794.011(4)(a), Florida Statutes (1989)....

...admitted that Harry Bullington never forced her to do anything, and none of the evidence presented suggested that she was an unwilling participant. Under the statute specified in the information, the State was required to prove that S.E.M. was "physically helpless to resist." Section 794.011(4)(e) defines a "physically helpless" person as one who is "unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act." Aside from the fact that S.E.M.'s hands were tied for sex acts by agreement, she was able to communicate orally and had full use of her legs....

...1st DCA 1991); Hicks v. State, 561 So.2d 1284 (Fla. 2d DCA), rev. denied, 574 So.2d 141 (Fla. 1990); State v. Sorakrai, 543 So.2d 294 (Fla. 2d DCA 1989). On agreement of counsel, the trial court instructed the jury that section 800.04 is a lesser included offense of section 794.011(4)....

...1991), we are precluded from remanding with directions to convict under a lesser charge unless the lesser charge is a necessarily included lesser offense. See West v. State, 585 So.2d 439 (Fla. 4th DCA 1991). Section 800.04 is not a necessarily included lesser offense of sexual battery because section 800.04, unlike section 794.011, requires that the victim be under the age of sixteen....

...*1164 Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. MONACO, J. The appellant, Gregory Bevard, was charged with a sexual battery upon his niece, a person less than 12 years of age, in violation of section 794.011(2), Florida Statutes (2004), and with a lewd or lascivious offense committed upon the same child, a person less than 16 years of age, in violation of section 800.04(5), Florida Statutes (2004)....

...cluded lesser offense [3] 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. NOTES [1] § 794.011(2), Fla....

...Gen., Tallahassee and Kellie A. Nielan, Asst. Atty. Gen., for appellee. ORFINGER, Judge. A jury found defendant guilty as charged of three counts of sexual battery on a person less than 12 years of age, by a person 18 years of age or older, in violation of section 794.011(2), Florida Statutes (1985) and one count of indecent assault on a child under 16, in violation of section 800.04(1), Florida Statutes (1985)....

...We also noted that the record before this court suggested appellant's involuntariness claim had merit. He asserted that his plea was coerced by threats of a life sentence, thereby rendering his plea involuntary. The information in the record showed that appellant was charged with sexual battery in violation of section 794.011(8)(b), Florida Statutes (1997), which is a first-degree felony punishable by a term of 30 years....

...Glaid, Assistant Attorney General, Fort Lauderdale, for appellee. PER CURIAM. The state concedes that appellant, a juvenile, cannot be convicted of attempted capital sexual battery, which requires the perpetrator to be over the age of eighteen. See § 794.011(2)(a), Fla....

...*111 Robert A. Butterworth, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee. Before FERGUSON, JORGENSON and GERSTEN, JJ. PER CURIAM. Appellant, Tony Jones, was convicted of six counts of sexual battery on his minor daughter in violation of section 794.011(2), Florida Statutes (1989)....

...Subsection 921.0013(3), Florida Statutes (1993), provides that a first-degree felony not listed in the offense severity ranking chart, section 921.0012, must be ranked as a level seven offense. Defendant's crimes of sexual battery, first-degree felonies pursuant to section 794.011(8)(b), Florida Statutes (1993), were not enumerated in section 921.0012, Florida Statutes (1993)....

...95-800 and remand for resentencing after recalculation of defendant's scoresheet. VACATED IN PART, REVERSED IN PART and REMANDED. DAUKSCH and W. SHARP, JJ., concur. NOTES [1] § 827.071(3), Fla. Stat. (1993). [2] § 800.04(4), Fla. Stat. (1993). [3] § 794.011(8)(b), Fla. Stat. (1993). [4] § 800.04(4), Fla. Stat. (1993). [5] § 794.011(8)(b), Fla....

...[8] The information filed in this case alleged defendant committed these crimes between May and June 1994. The 1994 supplement to section 921.0012, Florida Statutes was not effective until July 1, 1994. See Ch. 94-307, § 3-4, at 2150, Laws of Fla. Furthermore, section 794.011(8)(b), Florida Statutes was not specifically enumerated in the offense severity ranking chart until October 1, 1995....

...At trial, the court instructed the jury that the state had to prove that appellant "with his finger or fingers, penetrated or had union with the vagina of [the victim]." This instruction was incorrect because digital union is not a sexual battery (although digital penetration is). Section 794.011(1)(h), Florida Statutes (1985), defines "sexual battery" as follows: (h) The term "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 ......

...Stat.) to a total of 20 years imprisonment. Without invocation of the habitual offender statute and without valid written reasons justifying a departure sentence, the defendant was given a guidelines sentence on another count (sexual battery with a deadly weapon, § 794.011(3), Fla....

...excluding certain testimony and in consolidating trials on the charges. We agree that consolidation of the charges on the morning of trial was error, and we reverse. The state charged appellant by indictment with sexual battery as proscribed by *220 section 794.011(2), Florida Statutes (1981), and by information with kidnapping as proscribed by section 787.01(1)(a)(2), Florida Statutes (1981)....

...*1034 Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee. WARNER, J. Abrams appeals two life sentences imposed upon him pursuant to the Dangerous Sexual Felony Offender Act ("DSFO Act"), section 794.0115, Florida Statutes (2004)....

...However, the state concedes that his conviction for lewd and lascivious conduct is not a qualifying offense under the statute. Therefore, as to this count we reverse his life sentence. In 1994 Abrams was charged with two counts with sexual battery and indecent assault in violation of section 794.011(2), Florida Statutes (1993), and section 800.04(1), (4), Florida Statutes (1993), respectively....

...(6)(a), (b), Florida Statutes (2004), by committing lewd or lascivious conduct. [1] A jury found him guilty of both offenses. The state requested that the court classify Abrams as a dangerous sexual felony offender ("DSFO") pursuant to the DSFO Act, section 794.0115, Florida Statutes (2004). The relevant portion of the DSFO Act provides: (2) Any person who is convicted of a violation of s. 787.025; s. 794.011(2), (3), (4), (5), or (8); s....

...827.071(2), (3), or (4); or s. 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person: . . . . (e) Has previously been convicted of a violation of s. 787.025; s. 794.011(2), (3), (4), (5), or (8); s....

...If the *1035 mandatory minimum term of imprisonment under this section is less than the sentence that could be imposed under s. 775.082, s. 775.084, or chapter 921, the sentence imposed must include the mandatory minimum term of imprisonment under this section. § 794.0115, Fla....

...State, 614 So.2d 486 (Fla.1993), and the court has some discretion in the determination of habitual offender status, see section 775.084(4)(e) (court may find that habitual offender designation is not necessary for the protection of the public), no discretion exists under section 794.0115....

...se, a mandatory sentence of twenty-five years to life is imposed. So as to make its intention unmistakable, the legislature also provided that this mandatory sentence trumps all other types of sentencing statutes which might yield a lesser sentence. § 794.0115(6), Fla....

...However, the trial court sentenced him to life both on his conviction in count one for violating section 800.04(4)(a), Florida Statutes (2004), and in count two for violating section 800.04(6)(a), (b), Florida *1037 Statutes (2004). In order to qualify as a DSFO, section 794.0115 provides that the most recent conviction must be based on a violation of a list of crimes, including section 800.04(4) or (5). § 794.0115(2), Fla....

...Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee. *516 DANAHY, Acting Chief Judge. The appellant, Lee Curtis Davis, appeals his convictions and sentences for two counts of sexual battery on a physically helpless 13-year-old victim, violations of section 794.011, Florida Statutes (1985)....

...se. After closing argument, the jury convicted him as charged — two counts of sexual battery on a physically helpless victim. The appellant contends that one of the elements of the crimes charged is that the victim be physically helpless to resist. § 794.011(4)(a), Fla. Stat. (1985), and Fla.Std. Jury Instr. (Crim.) (Sexual Offenses). The definition of "physically helpless" is "that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act." § 794.011(1)(e), Fla....

...lant's motion for judgment of acquittal. The court's failure to do so requires us to reverse the appellant's convictions. Reversed and remanded with instructions to grant the appellant's motion for judgment of acquittal of the counts in violation of section 794.011(4)(a)....

...vidence was admissible to corroborate the testimony of a minor victim of sexual battery, the definition is nonetheless helpful in deciding whether sufficient evidence of familial or custodial authority has been presented to uphold a conviction under section 794.011(8)(b)....

...o penetration and no performance in front of an audience. We affirm. The victim's testimony clearly established a sexual battery predicated on a union with the defendant's penis. However, the charge sub judice was sexual battery with a finger, under section 794.011(1)(h), Florida Statutes (1987), which requires penetration of the vagina or anus....

...in the crack and just rubbed on it. Q. Do you know whether or not he put his finger in your vagina? A. No. (emphasis added). However, proof of mere "union with" the victim's vagina was insufficient because the state alleged penetration with fingers. § 794.011(1)(h), Fla....

...battery statute. We believe the legislators realized they had left the children of this state unprotected from lewd, lascivious, or indecent finger fondlings and the like which did not penetrate the vagina, so the next year, without any amendment to section 794.011(1)(h), they reenacted an amended section 800.04....

...NOTES [1] We note that the charged section is poorly worded and punctuated and should be amended. "A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony... ." § 794.011(2), Fla....

...of sexual battery. Finger penetration of a female's labia without penetration of her vagina would be a crime under section (1). However, section (2) which provides that a crime occurs when any person "commits an act defined as a sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; ......

...e erroneous designation as sexual predator). Accordingly, we reverse and remand for the trial court to strike Wade's designation as a sexual predator. Reversed and remanded with directions. CAMPBELL, A.C.J., and THREADGILL, J., Concur. NOTES [1] See § 794.011, Fla....

...Andre Frison ["Frison"] appeals the sentence that he received upon resentencing. He contends it was error to resentence him without counsel. We agree and reverse. Frison was sentenced in 1989 to life in prison for sexual battery with a deadly weapon pursuant to section 794.011(2), Florida Statutes (1987)....

...year sentence. In other words, the State asserts that the imposition of the forty-year sentence was mandatory; thus, there was no need for appointed counsel. Frison was originally convicted of sexual battery with a deadly weapon, a life felony under section 794.011(3), Florida Statutes (1987). The 1987 version of section 794.011 states: A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury is guilty of a life felony, punishable as provided in s....

...d was charged with capital sexual battery and other offenses. On January 27, 2005, Rincon entered a negotiated plea to the lesser offense of attempted sexual battery on a child under twelve years of age by an offender over eighteen years of age. See § 794.011(2)(a), Fla....

...Even on the merits, the amended motion lacks merit. Rincon argues that trial counsel was ineffective in failing to object to the sentences because the twenty-five year terms exceeded the maximum for a second degree felony. Rincon was charged with capital sexual battery under section 794.011(2)(a); the conviction for an attempt to commit a capital felony was properly classified as a first-degree felony....

...two female children under the age of fourteen, in violation of section 800.04, Florida Statutes. The information was subsequently consolidated with an indictment charging Dorman with two counts of sexual battery on the same children, in violation of section 794.011, Florida Statutes....

...Sweat appeals his 18-month sentence, contending the trial court erred in exceeding the sentence recommended by the sentencing guidelines set forth in Rules 3.701 and 3.988, Fla.R.Crim.P. (1983). We affirm. On 22 August 1983, Sweat was charged with sexual battery of a four-year-old mongoloid child contrary to Section 794.011, Florida Statutes....

...ch is also attached. At the sentencing hearing, Adams pled no contest to attempted capital battery. As the trial judge expressed it, it was a lesser included offense of the crime with which Adams had been charged—capital sexual battery—pursuant to section 794.011(2), Florida Statutes....

...Because Adams was facing a life sentence, he accepted the plea bargain. The court acknowledged that was the reason Adams agreed to plead no contest. The ambiguity in this case is that the sentencing document refers to Adams as having been sentenced pursuant to section 794.011(2), Florida Statutes, and entitles it "Attempted Sexual Battery on a Person Less than 12 years of Age." Section 794.011(2), Florida Statutes, contains an attempt offense if the sexual organs of the victim are injured....

...5th DCA 2002); Fuentes v. State, 711 So.2d 175 (Fla. 2d DCA 1998). A defendant cannot by a plea agreement accept a sentence that exceeds the statutory maximum. See Gonzales at 722. REVERSED and REMANDED for resentencing. PETERSON and PLEUS, JJ., concur. NOTES [1] §§ 794.011(2), 777.04(4)(b), 775.082(3)(b), Fla....

...Brooks was also convicted for improper exhibition of a firearm pursuant to Section 790.10, Florida Statutes (1989), and sentenced to one year to run concurrent with the life sentence. Defendant Lamont was convicted of sexual battery with a firearm pursuant to Section 794.011(3), Florida Statutes (1989), a life felony; burglary of an occupied dwelling with a firearm pursuant to Section 810.02(2)(b), Florida Statutes (1989), a first-degree felony punishable by a terms of years not exceeding life imprisonmen...

...this statute may be punished "as provided in s. 775.082, s. 775.083, or s. 775.084. " (Emphasis added). Defendant Lamont was convicted of sexual battery with a firearm, kidnapping with a firearm, and burglary of an occupied dwelling with a firearm. Section 794.011(3), which defines sexual battery with a firearm, Section 810.02(2)(b), Florida Statutes (1989), which defines burglary of an occupied dwelling with a firearm, and Section 787.01(2) which defines kidnapping, all state that persons convicted under the statute may be punished "as provided in s....

...ames Edward Brooks for the reclassified life felony of second-degree murder with a firearm, §§ 782.04(2), 775.087(1)(a), Fla. Stat. (1989), and (2) on the defendant Andre Henry Lamont for (a) the life felony of sexual battery with a deadly weapon, § 794.011(3), Fla....

...He then committed a non-consensual sexual battery on the victim after directing her into her bedroom. After the sexual battery, Lamont directed the victim and her four year old son at gunpoint to go into the bathroom and remain there, or they would be harmed. [3] Section 794.011(3) states specifically that: "A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon ......

...y of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084." (Emphasis added). [4] Moreover, the sexual battery statute under which defendant Lamont was convicted, Section 794.011(3), specifically refers to a life felony conviction as being subject to the penalty provisions of Section 775.084....

...red this case en banc. We vacate our prior per curiam panel decision filed herein on January 2, 1986, and substitute therefor the following opinion: In this case the defendant, Hightower, was indicted for sexual battery of a child of six pursuant to section 794.011(2), Florida Statutes (1983)....

...The defendant pointed out that lewd and lascivious conduct was not listed in the Schedule of Lesser Included Offenses, Florida Standard Jury Instructions in Criminal Cases (1981 ed.), as either a category one (necessary) or category two (permissive) lesser offense of sexual battery under section 794.011(2)....

...COBB, C.J., and DAUKSCH and ORFINGER, JJ., concur. COWART, J., concurs specially with opinion. SHARP, J., dissents with opinion in which UPCHURCH, J., concurs. COWART, Judge, concurring specially: The defendant in this case was charged with sexual battery (§ 794.011(2), Fla....

...h the child consented, I see no reason why the indictment in this case, which alleged rape or sexual battery on a child (whether or not the child consented) is not also a sufficient basis to convict under section 800.04. Technically, the elements of section 794.011(2) can be construed as different from or exclusive of the acts prohibited in section 800.04....

...Section 800.04 was substantially revised in 1984, too late to be applicable in this case. But the revision makes clear not only that a child's lack of chastity or consent is no defense to this crime, but it also clearly provides that sexual battery as defined under section 794.011(1)(h) is a method by which the crime of section 800.04 may be committed....

..., and since the indictment in this case clearly alleged sexual battery or rape of this six year old victim, there was no error in instructing the jury on section 800.04 (a second degree felony) as a lesser included offense of the crime charged under section 794.011(2) (a capital felony). UPCHURCH, J., concurs. NOTES [1] Section 794.011(2), Florida Statutes (1983), reads as follows: (2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss....

...te of the amendment to section 800.04 in 1984. Moreover, that amendment deals with consensual intercourse with an unchaste child of twelve — sixteen, as shown by the preamble thereto — a factual situation clearly inapplicable to prosecutions under section 794.011(2)....

...For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial. [7] Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [1] § 800.04, Fla. Stat. (1983). [2] § 794.011(2), Fla....

...Moreover, since this matter must be remanded for resentencing, a new scoresheet will be prepared in which the trial court may correct this clerical oversight. JUDGMENT AFFIRMED; SENTENCE REVERSED and CAUSE REMANDED. GRIFFIN, C.J., and DAUKSCH, J., concur. NOTES [1] § 794.011(3), Fla....

...We reverse the conviction for lewd or lascivious molestation and remand the case to the trial court with directions to vacate that conviction and the sentence imposed for it. [1] Appellant was charged with one count of sexual battery on a person less than twelve years of age, contrary to section 794.011(2)(a), Florida Statutes (2004), and one count of lewd or lascivious molestation, contrary to section 800.04(5)(b), Florida Statutes (2004)....

...Accordingly, the only issue left for our determination is whether each crime contains an element that the other does not, by reference to the statutory definitions only. See Paul, 934 So.2d at 1173. The two crimes at issue are sexual battery, as defined in section 794.011(1)(h), and lewd or lascivious molestation, as defined in section 800.04(5)(a)....

...In either case, *847 convictions for two separate crimes can be upheld only if each crime contains an element that the other does not. See id. We agree with the Johnson holding and conclude that it supports reversal in this case. Moreover, our own comparison of sections 794.011(1)(h) and 800.04(5)(a), which is controlled by the supreme court's analysis in Paul, 934 So.2d at 1173-74, leads us to the same conclusion. Section 794.011(1)(h) defines sexual battery 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." Section 800.04(5)(a) defines lewd or lascivious mol...

...gal authority. Webber's Rule 3.850 motion, as amended, is barred by being untimely, successive, and at this point an abuse of process. See Leone v. State, 657 So.2d 26 (Fla. 5th DCA 1995). AFFIRMED. PETERSON, C.J., and GRIFFIN, J., concur. NOTES [1] § 794.011(2), Florida Statutes (1983)....

...s of changing his address, pursuant to section 943.0435(4), Florida Statutes (1999). We reverse and remand for further proceedings. On February 8, 1999, appellant pled no contest to two counts of sexual battery with great force not used, contrary to section 794.011(5), Florida Statutes (1995), and was sentenced to ten years sexual offender probation....

...On August 12, 1996, the State Attorney for the Sixth Judicial Circuit, Pasco County, filed an information charging Burnsed with one count of capital sexual battery and four counts of handling and fondling a female child under the age of sixteen, in violation of section 794.011(2), Florida Statutes (1991), and section 800.04(1), Florida Statutes (1991), respectively....

...State, 634 So.2d 153 (Fla. 1994), and Goodwin v. State, 634 So.2d 157 (Fla. 1994). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Based on a single sexual act, Thompson was convicted of sexual battery on a physically incapacitated victim in violation of section 794.011(4)(f), Florida Statutes (1991), and sexual activity while in custodial authority of a child, in violation of section 794.041(2)(b), Florida Statutes (1991)....

...One of the sexual battery offenses occurred on October 22, 1991, and the other on April 29, 1993. After Jones entered prison, the Department of Corrections informed him that he was ineligible for one-third basic gain time for a sexual battery offense committed after October 1, 1992. See § 794.011(7), Fla....

...Accordingly, we reverse the defendant's sentence and remand for resentencing with a scoresheet including 22 additional points. Affirmed in part, reversed in part, and remanded. THREADGILL, A.C.J., and DAKAN, STEPHEN L., Associate Judge, concur. NOTES [1] See § 794.011(8)(b), Fla....

...This instruction would be similar to, but in the reverse direction, the instruction on lesser included offenses. This procedure might well eliminate limited jury pardons with unintended consequences without affecting the jury's general pardon power. NOTES [1] § 794.011(4), Fla. Stat. (1995). [2] § 794.023, Fla. Stat. (1995). [3] § 794.011(4); 777.011, Fla....

...nce thereof did: TOUCH THE BREASTS, BUTTOCKS AND VAGINAL AREA OF AND RESTRAIN WHILE UNSNAPPING HER PANTS, without the consent of and in the process used physical force and violence not likely to cause serious personal injury, in violation of 777.04, 794.011(5), Florida Statutes....

...Murphy 394 So.2d 411 (Fla. 1981). The crime herein is attempted sexual battery. Sexual battery is defined as the "oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any object; ..." Section 794.011(1)(f) Fla....

...Colley pleaded nolo contendere to several charges stemming from an episode that occurred in April 1994. Among other offenses, Mr. Colley pleaded to attempted sexual battery of a person over 12 years of age while armed with a dangerous weapon, a violation of section 794.011(4)(b), Florida Statutes (1993). Attempted sexual battery is a second-degree felony. See §§ 794.011(4), 777.04(4)(d), Fla....

...Colley might qualify for sexual predator designation under section 775.23(2)(b) because of his prior California offenses. [2] We note that Mr. Colley's judgment, which is not the order on appeal, contains a scrivener's error. His judgment should reflect that Mr. Colley was convicted of violating section 794.011(4)(b), not section 794.011(4)(d).

...The commitments on counts I and II are vacated, and this matter is remanded with direction to the trial court to comply with section 39.052, Florida Statutes (1993), and to execute a separate disposition form with regard to counts I and II. VACATED and REMANDED with directions. HARRIS and GRIFFIN, JJ., concur. NOTES [1] § 794.011(2), Fla. Stat. (1993). [2] § 800.04(1), Fla. Stat. (1993). [3] § 777.04, 794.011(2), Fla....

...At the time of the events at issue defendant was thirty-six years of age and the victim was eleven. [1] The defendant was charged in Count I with capital sexual battery "by placing his mouth in union with the vagina of [the victim] in violation of s.794.011(2) ... Florida Statutes...." Under section 794.011(2), Florida Statutes (1999) "[a] person 18 years of age or older who commits sexual battery upon ......

...996, when he was sixteen. Eventually prosecuted as an adult, he entered pleas of nolo contendere to two second degree felonies: attempted sexual battery by a person under eighteen years of age upon a person under twelve years of age, in violation of section 794.011(2)(b), Florida Statutes (1995), and lewd and lascivious assault upon (apparently the same) child less than sixteen years of age, in violation of section 800.04, Florida Statutes (1995)....

...cess guaranteed by both the state and federal constitutions. NOTES [1] On August 20, 1997, Appellant pleaded nolo contendere to attempted sexual battery by a person under eighteen years of age upon a person under twelve years of age, in violation of section 794.011(2), Florida Statutes, and lewd and lascivious assault upon a child less than sixteen years old, in violation of section 800.04, Florida Statutes....

...3] In his supplemental reply brief on the procedural due process claim, Appellant explicitly disavows raising any substantive due process claim. [4] At the time appellant allegedly committed the second degree felony offenses in violation of sections 794.011(2)(b) (attempted sexual battery by a person under eighteen years of age upon a person under twelve years of age) and 800.04 (lewd and lascivious assault upon a child less than sixteen years old), the Act did not apply to him because he had no...

...or b. Any second degree or greater felony violation of chapter 794, [or] s. 800.04... and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 794.011(2) ......

...(Supp.1998)) (emphasis supplied). Chapter 98-81 broadened the reach of the statute so that appellant's plea of nolo contendere to attempted sexual battery by a person under eighteen years of age upon a person under twelve years of age qualified him as a sexual predator. See § 794.011(2)(b), Fla....

...1996)), stating an intent to "[p]rohibit[] sexual predators from working with children, either for compensation or as a volunteer," and providing: A sexual predator who has been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s. 794.011(2), (3), (4), (5), or (8), s....

...Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee. *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)....

...ore reverse and remand for a hearing on this matter. However, we hold that the trial court properly denied the motion on the other two grounds and affirm on these issues. Defendant was convicted of one count of capital sexual battery in violation of section 794.011(2) of the Florida Statutes (1983), and two counts of sexual battery, both in violation of section 794.011(4)(c) of the Florida Statutes (1983)....

...In his 3.850 motion defendant also claims that the trial court did not afford *812 him a right to "allocution" on the capital charge because the jury did not specifically find that he was 18 years of age or older at the time of the offense which is an element of capital sexual battery under section 794.011(2) of the Florida Statutes (1983)....

...We affirm the departure sentence imposed for armed robbery. Appellant was charged with numerous offenses, including two counts of having committed a sexual battery upon a person older than 12, using or threatening to use a firearm in the process, in violation of section 794.011(3), Florida Statutes (1995)....

...Id. At trial, during the charge conference, defense counsel requested that the trial judge instruct the jury on the second-degree felony of sexual battery upon a person older than 12, without force or violence likely to cause serious personal injury. § 794.011(5), Fla.Stat. (1995). Defense counsel argued that the offense proscribed by section 794.011(5) is a necessarily lesser-included offense of that with which appellant was charged, entitling appellant to the benefit of such an instruction. The prosecutor argued that the offense proscribed by section 794.011(5) was a category 2 (as opposed to a category 1) lesser-included offense of those with which appellant was charged and, because there was no evidence to support a finding that appellant had not been armed with a firearm during the commission of the offenses, he was not entitled to such an instruction....

..., a first-degree misdemeanor. § 784.03, Fla.Stat. (1995). This was error. Some eight months prior to appellant's trial, the supreme court had amended the Florida Standard Jury Instructions in Criminal Cases to reflect that the offense proscribed by section 794.011(5) is a category 1 lesser-included offense of that proscribed by section 794.011(3)....

...a noncapital crime."), pet. for review denied, 528 So.2d 1183 (Fla. 1988). As Ulloa makes clear, the rule is different only in those instances — in which the death penalty is or was unavailable as a matter of law — that is, capital sexual battery, § 794.011(2), Fla....

...Obviously, the statute was enacted to protect the elderly, not the criminals, the theory behind the statute being that he or she who assaults elderly people does so at his or her peril. In the same vein, he or she who rapes a child under twelve does not have to know that the child is of such tender years. § 794.011(2), Florida Statutes (1989)....

...However, such allegations have been found legally *990 insufficient when asserted in a motion for disqualification. We next address Mr. Kalapp's claim the trial court erred in imposing a departure sentence. The primary offense at sentencing was sexual battery with a deadly weapon. See § 794.011(3), Fla....

...defendant scores 363 or more points. Accordingly, the sentences imposed in this case did not constitute departure sentences. Appeal DISMISSED. DAUKSCH and GOSHORN, JJ., concur. NOTES [1] §§ 787.01(1)(a)(2); 810.02(2)(c); 782.04(1)(a)1; 777.04(1); 794.011(3), Fla....

...Rolando Garcia timely appeals his conviction for capital sexual battery. We affirm. Garcia was charged with capital sexual battery by a person at least eighteen years of age on a child less than twelve years of age for a single offense that occurred sometime between July 11 and July 31, 2004. See § 794.011(2)(a), Fla....

...The information alleged that Garcia "did while being eighteen (18) years of age or older, commit a sexual battery upon T.M.B. (d.o.b.: 11/10/99), a child less than twelve years of age, to-wit: the defendant, with his mouth and/or tongue, had union with the vagina of T.M.[B.], contrary to section 794.011(2)(a), Florida Statutes." At the time of the offense, Garcia was forty-nine years old and the victim was four years, eight months old....

...quest. The supreme court has recognized that under the revised version of section 800.04 applicable in the present case, one or more of the offenses specified in that statute might possibly constitute lesser included offenses to sexual battery under section 794.011, despite prior precedent that would suggest otherwise....

...The supreme court, in Williams, held that the crime of lewd or lascivious battery prohibited by section 800.04(4)(a), Florida Statutes (2002), may be a permissive lesser included offense of the crime of sexual battery with a deadly weapon or use of force likely to cause serious personal injury charged pursuant to section 794.011(3), Florida Statutes (2002). Williams, 957 So.2d at 598. The supreme court compared sections 800.04(4)(a) and 794.011(3) to determine whether the greater crime could be charged in a manner encompassing the lesser....

...ivity" by reference to the chapter's definitional provision, and the definition for sexual activity under chapter 800 was virtually identical to the definition for sexual battery set forth in chapter 794. See Williams, 957 So.2d at 598-99 (comparing section 794.011(1)(h), Florida Statutes (2002), with section 800.04(1)(a), Florida Statutes (2002)). The court determined that "when the State alleges that the victim was between ages twelve and fifteen in a count charging a violation of section 794.011(3) (sexual battery as defined), that charge subsumes lewd or lascivious battery under section 800.04(4)(a) (sexual activity as defined)." Williams, 957 So.2d at 599....

...Ready, challenges the judgment and sentence adjudicating him guilty of sexual battery upon a child less than twelve years of age. We reverse. The state charged appellant with sexual battery by placing his finger in the vagina of a child less than twelve years of age contrary to section 794.011(2), Florida Statutes (1987)....

...The defendant, Francisco Pineiro, appeals from his conviction for fifty-seven counts of sexual battery on a person less than twelve years of age. We affirm. The defendant was charged by information with fifty-seven counts of sexual battery on a person less than twelve years of age, in violation of Section 794.011(2), Florida Statutes (1989)....

...The defendant also argues that section 775.084, Florida Statutes (2006), the habitual felony offender statute, violates his right to a trial by jury. We disagree and affirm. Admission of the Psychologist's Opinions as to Whether the Victim was "Mentally Defective" and Capable of Consent Section 794.011(4)(e), Florida Statutes (2006), provides that a person who commits sexual battery upon a person of 12 years of age or older without that person's "consent" commits a first-degree felony when the victim is "mentally defective" and the offender has reason to believe this or has actual knowledge of this fact. Section 794.011(1)(a), Florida Statutes (2006), provides that "`[c]onsent' means intelligent, knowing, and voluntary consent and does not include coerced submission. `Consent' shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender." Section 794.011(1)(b), Florida Statutes (2006), provides that "`[m]entally defective' means a mental disease or defect which renders a person temporarily or permanently incapable of *661 appraising the nature of his or her conduct." [1] The defendant...

..."Repeated interjections without objection can recast the judicial role from impartial adjudicator to an apparent advocate for the party foreswearing objection." Brown v. State, 678 So.2d 910, 913 (Fla. 4th DCA 1996). Judgment and sentence REVERSED and cause REMANDED. W. SHARP, HARRIS, and ANTOON, JJ., concur. NOTES [1] § 794.011(4), Fla....

...Lewis argues on this point that the trial court erred in entering judgment and sentence against him for sexual battery with a deadly weapon, a life felony, when the jury verdict found him guilty of sexual battery without mention of a weapon, which is a first-degree felony. See § 794.011(2) and (3), Fla....

...State, 492 So.2d 360 (Fla.), cert. denied, 479 U.S. 1022, 107 S.Ct. 680, 93 L.Ed.2d 730 (1986). Affirmed. LEHAN, A.C.J., and ALTENBERND, J., concur. NOTES [*] The indictment charged Lewis with sexual battery with the use or threatened use of a weapon contrary to section 794.011(3), Florida Statutes (1983), a life felony.

....05 exists. Pursuant to previous legislative enactments on the subject matter, other prohibited acts of sexual misconduct currently include: (1) Sexual battery upon a person less than 12 years of age by a person 18 or older, with or without consent. § 794.011(2)(a). (2) Sexual battery upon a person less than 12 years of age by a person less than 18 with or without consent. § 794.01(2)(b). (3) Sexual battery upon a person 12 or older, by anyone without consent of the victim. § 794.011(3), (4), (5)....

...Rickey Spivey appeals from the denial of his motion to correct sentence. Of the several points raised in Spivey's motion, only one is meritorious. Spivey received a sentence of sixty years for sexual battery aggravated by the use of a weapon, a life felony. § 794.011(3), Fla....

...The defendant may present a proposed jury instruction for consideration by the trial court on remand. Second, the defendant made a motion for judgment of acquittal in the trial court, arguing that the evidence was legally insufficient to support the charge of sexual battery with great force. § 794.011(3), Fla....

...[4] Insofar as pertinent here, that crime occurs where the defendant commits sexual battery and "uses actual physical force likely to cause serious personal injury...." Id. "`Serious personal injury' means great bodily harm or pain, permanent disability, or permanent disfigurement." Id. § 794.011(1)(g). The defendant argued that the evidence did not show the use of actual physical force likely to cause serious personal injury, and that the charge should be reduced to the lesser included offense of sexual battery under subsection 794.011(5)....

...State, 634 So.2d 607 (Fla.1994); Laurore v. State, 3 So.3d 1286 (Fla. 3d DCA 2009); Mandelbaum v. State, 676 So.2d 510 (Fla. 4th DCA 1996). AFFIRMED. MONACO, C.J., SAWAYA and LAWSON, JJ., concur. NOTES [1] §§ 810.02(2)(a), 775.087(1), Fla. Stat. (1990). [2] § 794.011(3), Fla....

...If it were otherwise and destruction of the familial unit was a rarity, then it could possibly suffice as a clear and convincing reason for departure. In this case, Connell was convicted of sexual battery and lewd assault of a child under fourteen years of age. See § 794.011(4) and § 800.04, Fla....

...ffect an escape from custody."). We therefore affirm the conviction but reverse the departure sentence imposed on the sexual battery conviction and remand for resentencing within the guidelines. WARNER, C.J., and STEVENSON, J., concur. NOTES [1] See § 794.011(3), Fla....

...(1997) ("A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony...."). [2] See and compare § 794.011(4)(b) ("... coerces the victim to submit by threatening to use force or violence [e.s.] likely to cause serious personal injury on the victim ...."), with § 794.011(3) ("......

...GOSHORN, Judge. James Arnold Norman was convicted of committing a sexual battery when the victim was physically helpless to resist. [1] Because there is no evidence that the victim was physically helpless as that term is statutorily defined, we reverse. Section 794.011(1)(e) provides: The term "physically helpless" means that a person is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act....

...However, upon remand, the trial court may consider the assessment of costs following proper notice and hearing. Mays v. State, 519 So.2d 618 (Fla. 1988). Accordingly, this case is reversed and remanded for resentencing for the lesser included offense of sexual battery in violation of section 794.011(5), Florida Statutes (1987). REVERSED and REMANDED. DAUKSCH and HARRIS, JJ., concur. NOTES [1] § 794.011(4)(a), Fla....

...in Escambia County. The information, dated May 11, 1976, contains three counts. Count I alleges burglary in violation of section 810.02(3), Florida Statutes (1975), which was a second-degree felony in 1976. Count II is sexual battery in violation of section 794.011(3), Florida Statutes (1975), which was a first-degree felony, punishable by life in prison....

...The original offense was ranked under earlier versions of the guidelines as a level nine offense. See § 921.0012, Fla. Stat. (1993); § 921.0012, Fla. Stat. (Supp.1994). The original statute was repealed, however, in 1993. See Ch. 93-156, § 4, Laws of Florida. It was immediately reenacted as section 794.011(8)(b), Florida Statutes (1993), in essentially identical form, but due to a legislative oversight, the new statute was not added to the guidelines' list of enumerated offenses until 1995....

...Even if Perry had relied upon an incorrectly calculated scoresheet during negotiations, her sentence would not thereby be rendered illegal. Skidmore v. State, 688 So.2d 1014 (Fla. 3d DCA 1997). AFFIRMED. HARRIS and ANTOON, JJ., concur. NOTES [1] Formerly § 794.041, Fla. Stat., now § 794.011(8)(b)....

...turned a verdict finding appellant guilty as charged. He was sentenced to nine years in prison to be followed by three years probation. Section 800.04 provides in pertinent part: A person who: * * * (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; ... * * * without committing the crime of sexual battery, commits a felony of the second degree, ... Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section. Section 794.011(1)(h) defines sexual battery as follows: (h) "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; ......

...Appellant, Altas Allen ("Allen"), appeals the trial court's order revoking his community control as a result of two violations of the terms of his community control. We affirm. Following Allen's no contest plea to two counts of sexual battery/threat of retaliation pursuant to section 794.011(4)(c), Florida Statutes (1993), the court imposed a two-year community control term and a ten-year term of probation....

...We affirm the trial court's revocation of Allen's community control, but hold that the resultant sentence of twenty-two years in prison, followed by ten years' probation, exceeds the thirty-year statutory maximum (fifteen years on each count). See Soria v. State, 584 So.2d 1130 (Fla. 5th DCA 1991); see also §§ 794.011(4)(c) and 775.082, Fla....

...Having concluded that it was error for the trial court to exclude such evidence and that this error was certainly not harmless we hold that defendant's judgment and sentence must be vacated and this matter remanded for a new trial. REVERSED AND REMANDED FOR NEW TRIAL. SHARP, C.J., and DAUKSCH, J., concur. NOTES [1] § 794.011(2), Fla....

...Two are a part of Florida jurisprudence and at least one has a commonplace meaning outside the field of psychology. We grant the petition for certiorari and issue the writ quashing the trial court's order. PETITION GRANTED; WRIT ISSUED; ORDER QUASHED. PETERSON, C.J., and THOMPSON, J., concur. NOTES [1] § 794.011(8)(b), Fla....

...Gen., Tallahassee, and Peggy Ann Quince, Asst. Atty. Gen., Tampa, for appellee. SCHEB, Acting Chief Judge. Defendant Harold Walker appeals his convictions for sexual battery on a child by a person in a position of familial authority, an offense proscribed by section 794.011(4)(e), Florida Statutes (1983)....

...*270 DAUKSCH, Judge, concurring specially. While I agree the judgments should be affirmed, I cannot subscribe to the obiter dicta regarding section 924.051(8), Florida Statutes (Supp.1996). NOTES [1] § 810.02(2)(a), Fla. Stat. (1993). [2] § 787.01(1)(a)2, Fla. Stat. (1993) [3] § 794.011(3), Fla....

...*257 James Marion Moorman, Public Defender, Bartow and Allyn Giambalvo, Assistant Public Defender, Clearwater, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee and Scott A. Browne, Assistant Attorney General, Tampa, for Appellee. FRANK, Acting Chief Judge. Pursuant to section 794.011(5), Florida Statutes (1993), Jackson Keffer was convicted of sexual battery with slight force....

...permissible strengthening of her testimony was critical. Had the jury believed Keffer and disbelieved the victim, he could not have been convicted of sexual battery, which required, in this case, penetration of the victim's vagina by his finger. See § 794.011(1)(h), Fla.Stat....

...With regard to the second point presented for review, i.e., the two concurrent 65-year sentences, Blackshear contends and the state agrees that the sentences are improper because they are not within the parameters provided by statute. Blackshear pled guilty to a violation of Section 794.011(3), Florida Statutes, [1] and Section 787.01, Florida Statutes....

...everse *210 and remand the concurrent 65-year sentences for imposition of a sentence that comports with the law. Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. ERVIN and BARFIELD, JJ., concur. NOTES [1] § 794.011(3), Fla....

...Zopf appeals from an order denying his petition for writ of mandamus seeking to compel the Florida Department of Corrections (the Department) to award him basic gain-time pursuant to section 944.275, Florida Statutes (1993). The appellant contends that the Department erred as a matter of law in interpreting section 794.011(7), Florida Statutes (1993), so as to include him within the subsection's provisions and, on that basis alone, to classify him as ineligible for basic gain-time....

...al right to be considered eligible for basic gaintime. We reverse the order and remand for further proceedings not inconsistent with this opinion. In February 1993, the state charged Zopf with sexual battery upon a person under 12 years of age under section 794.011(2), Florida Statutes (Count I); a lewd assault upon a child under section 800.04(1), Florida Statutes (Count II); and a lewd act in the presence *681 of a child under section 800.04(4), Florida Statutes (Count III). The date of the offenses was October 8, 1992. The appellant entered a plea of nolo contendere in Count I to attempted sexual battery, a crime under section 794.011(2), Florida Statutes, as modified by the "attempt" statute, section 777.04, Florida Statutes....

...ch month of each sentence imposed on a prisoner, ..." A different statute provides in pertinent part that "[a] person who is convicted of committing a sexual battery on or after October 1, 1992, is not eligible for basic gain-time under s. 944.275." § 794.011(7), Fla. Stat. (1993). In calculating the appellant's maximum and tentative release dates, the Department determined that because "inmate Zopf was convicted of an offense under Florida Statutes Section 794.011," he is prohibited on that basis from receiving basic gain-time under section 944.275, Florida Statutes. Challenging the denial of basic gain-time, Zopf utilized the Department's administrative grievance process claiming that because he was convicted of attempted sexual battery, and was not "convicted of committing a sexual battery" as section 794.011(7), Florida Statutes (1993), contemplates, he is not covered by subsection (7)....

...ss this specific issue. After the proposed clarifications failed to make it to the floor of the legislature and were not passed, the Department withdrew its motion to stay and responded to the petition. The Department argued below and on appeal that section 794.011(7), Florida Statutes (1993), applies to any offense committed under section 794.011, Florida Statutes (dealing with "sexual battery"), notwithstanding that the sexual battery "may be modified" by the provisions of the "attempt" statute. The trial court denied Zopf's petition and stated in pertinent part: The court finds that the phrase "convicted of committing a sexual battery" includes convictions for attempted sexual battery under Section 794.011 for purposes of gain-time. The fact that Section 777.04, Florida Statutes, provides for a lesser degree of punishment for attempts than for convictions of the actual offense does not affect the obvious legislative intent of Section 794.011(7) of preventing the early release of sexual offenders under that statute. Under the statutory provisions applicable in this case, the plaintiff has failed to show a clear legal right to the award of basic gain-time. After examining section 794.011(7), Florida Statutes (1993), we have concluded that the language referring to "[a] person who is convicted of committing a sexual battery" is "clear and not entirely unreasonable or illogical in its operation," so that we lack the "po...

...Scott, Asst. Atty. Gen., for appellee. Before HUBBART, BASKIN and FERGUSON, JJ. PER CURIAM. The defendant Sergio Leon appeals his judgment of conviction and life sentence for the life felony of sexual battery on a person less than twelve years of age. § 794.011(2), Fla....

...ome pause. We have concluded, however, that the tender age of the complainant cannot constitute a reason for the sentencing departure herein because the age of the complainant — eleven years or under — is an essential element of the crime charged. § 794.011(2), Fla....

...Fahlbusch, Asst. Atty. Gen., for appellee. Before HUBBART, NESBITT, and PEARSON, DANIEL S., JJ. PER CURIAM. The defendant appeals both his conviction and sentence for the offense of sexual battery committed upon a person under the age of eleven years. § 794.011(2), Fla....

...ribed by Florida Rule of Criminal Procedure 3.191. We have jurisdiction under Florida Rule of Appellate Procedure 9.140(c)(1)(E). On June 25, 1984, the defendant was arrested for sexual battery on a child over the age of eleven years in violation of section 794.011, Florida Statutes (1983)....

...s were consistent with forced sexual intercourse). Thus Dr. Colombo's testimony was properly admitted. With regard to the sentencing issue, Irons was convicted of sexual battery, a second degree felony, punishable by up to fifteen years is prison. §§ 794.011(5); 775.082(3)(c), Fla....

...Accordingly, we affirm Irons' conviction for sexual battery, but we vacate the sentence and remand for the imposition of the mandatory prison releasee reoffender sentence. Conviction AFFIRMED; Sentence VACATED; REMANDED. PETERSON and ORFINGER, R.B., JJ., concur. NOTES [1] § 794.011(5), Fla....

...We agree and because we are unable to conclude that the State met its burden to demonstrate harmless error, we reverse and remand for a new trial. Procedure and Facts This appeal is from the judgment and sentence imposed after the jury verdict in Mr. Foreman's second trial on charges that he committed two violations of section 794.011(2), Florida Statutes (1997), each count alleging the perpetration of a capital sexual battery on K.Z....

...Section 90.404(2)(b)(1) provides that in a criminal case where a defendant is charged with a "child molestation" crime, evidence that the defendant committed "other crimes, wrongs, or acts of child molestation is admissible." "Child molestation," for purposes of this evidentiary *1174 section, is conduct "proscribed by s. 794.011 or s. 800.04" and when committed against a person sixteen years of age or younger. § 90.404(2)(b)(2). Here, two of the statutory requirements are met. First, the offense charged is a violation of section 794.011, Florida Statutes (1997), and second, the alleged victim is less than sixteen years of age....

...State, 934 So.2d 1248, 1259 (Fla.2006) (quoting § 90.403). To be admissible under this section, the challenged evidence must constitute a crime, wrong, or act of child molestation. The challenged evidence falls well short of constituting a violation of either section 794.011 or section 800.04 Fla....

...(1989-1992) (proscribing the offense, a first-degree felony); § 775.15(2)(a), Fla. Stat. (Supp.1990-1992) (providing the time limitations for prosecution of first-degree felony). Effective October 1, 1993, section 794.041 was repealed and reenacted as subsection (8) of section 794.011. See ch. 93-156, §§ 3, 4, at 911, § 27 at 933, Laws of Fla. Section 775.15(7), Florida Statutes (1993-1997), tolls the statute of limitations for a violation of section 794.011. If the victim of a violation of s. 794.011, s....

...2) on or before December 31, 1984. § 775.15(7), Fla. Stat. (1993-1997). Clements claims that the exact date of the offense was never established and that he must be given the benefit of the possibility of it occurring prior to the effective date of section 794.011(8) and of the tolling provision with respect to section 794.011(8)....

...State, 820 So.2d 405, 406 (Fla. 2d DCA 2002), this court held that the tolling provision in "section 775.15(7) does not and has never included section 794.041 as a statute to which its tolling provisions apply." Although in 1993 section 794.041 became a part of 794.011 — "a statute to which the tolling provisions of section 775.15(7) apply" — "[t]he tolling provisions of section 775.15(7) are not applicable to violations of *259 section 794.041 committed before October 1, 1993." Hemphill, 820 So.2d at 406-07....

...If the offense was committed before or on September 30, 1993, it would have constituted a violation of section 794.041 subject to the four-year statute of limitations. If the offense was committed on or after October 1, 1993, it would have constituted a violation of section 794.011(8) and the tolling provision of section 775.15(7), Florida Statutes (1993-1997), would toll the statute of limitations until the victim turned sixteen or when the violation was reported to a government agency, whichever was earlier. See Hemphill, 820 So.2d at 406-07 ("[I]f Hemphill's offense occurred on or after October 1, 1993, he could have been properly charged under section 794.011, and the statute of limitations would not have run.")....

...The benefit of the possibility must be given to the defendant. Id. The first-degree offense of sexual activity by a person in a position of familial authority requires that the person engage the child in an act that constitutes sexual activity or sexual battery. See § 794.041(2)(b), Fla. Stat. (1989-1992); § 794.011(8)(b), Fla....

...Stat. (1993-1997). Sexual activity or 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." § 794.041(1), Fla. Stat. (1989-1992); § 794.011(1)(h), Fla....

...d must be given to the defendant." 654 So.2d at 1222. While there was some evidence indicating that some type of touching or inappropriate activity occurred after October 1, 1993, this evidence was not sufficient to prove that a sexual battery under section 794.011(8)(b) occurred....

...aims that the nature of the offense indicates that it was a continuing one and that it ended when the victim and her family moved out of Clements' house in 1997. Nothing in the applicable statutes, sections 794.041, Florida Statutes (1989-1992), and 794.011(8)(b), Florida Statutes (1993-1997), indicates that the legislature intended to prohibit a continuing course of conduct when proscribing the offense of sexual activity by a person in familial or custodial authority....

...ffense charged against Clements. However, even if the tolling provision applied, the prosecution was still untimely. The final sentence of section 775.15(7) unequivocally provides that the tolling provision applies to any of the offenses codified in section 794.011, Florida Statutes (1997). Among those offenses is the crime of sexual activity with a child by a person in familial or custodial authority. In 1993, this crime, which had previously been codified in section 794.041, was transferred to section 794.011(8). When the crime became a part of section 794.011, it became subject to the tolling provisions of section 775.15(7). By transferring the crime of sexual activity with a child by a person in familial or custodial authority to section 794.011, the legislature evinced a clear intent to make "any such offense" subject to the tolling provision of section 775.15(7)—unless the prosecution of the offense had been barred prior to being made subject to the tolling provision....

...attempted sexual battery, an offense under chapter 777, Florida Statutes (1997). We agree and reverse. This court earlier considered a similar issue in Zopf v. Singletary, 686 So.2d 680 (Fla. 1st DCA 1996). We held in that case that the language of section 794.011(7), Florida Statutes (1993), making those convicted of sexual battery ineligible for gain-time, was not applicable to inmates convicted of attempted sexual battery....

...Public Defender, Bartow, for appellant. Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee. GRIMES, Judge. The only significant question on this appeal is whether a person convicted of sexual battery under section 794.011(2), Florida Statutes (1981), may receive a minimum mandatory twenty-five year sentence. Appellant was convicted of sexual battery under section 794.011(2) which reads as follows: (2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss....

...There, as here, the defendant was charged with sexual battery by a person *1380 over eighteen on a victim eleven years or younger. Based upon the recent supreme court ruling in Buford, the trial judge tried the case before a jury of six persons rather than twelve. The defendant was convicted of attempted sexual battery under section 794.011(2) and sentenced to thirty years' imprisonment....

...stitute a jury to try all capital cases. The court rejected this argument by reasoning that all attributes of sexual battery as a capital crime fell when the death penalty for that offense was abolished. The court also held that sexual battery under section 794.011(2) was therefore a life felony for which the attempt to commit carried a maximum sentence of fifteen years....

...We have steadfastly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so and of course this clearly exists in these circumstances. 265 So.2d at 502-03. Thus, we hold that even though sexual battery under section 794.011(2) is not a capital crime in the sense that it may result in the imposition of the death penalty, the punishment for that crime must still be imposed under section 775.082(1) to its constitutional limits. This means that one convicted under section 794.011(2) must be automatically "punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole." § 775.082(1)....

...on to punish under section 775.082(1). The defendant had been convicted of attempted sexual battery and his sentence was merely reduced from thirty to fifteen years. However, the premise for the Hogan sentence reduction was that sexual battery under section 794.011(2) is now a life felony for all purposes including sentencing....

...family's Florida vacation. He said his wife came into the room and saw what he was doing. At that point, he got up and ran away. Corona was charged with committing the crime of capital sexual battery against A.C., who was less than twelve years old. § 794.011(2), Fla....

...JOANOS, MINER and DAVIS, JJ., CONCUR. NOTES [1] 59G-4.150(4)(a)12.: Inpatient hospital care for induced abortions and related procedures shall be reimbursed only to save the life of the mother or, when the pregnancy is the result of rape (as defined in Section 794.011, F.S....

...*698 Larry Hoffman, Clearwater, for Appellant. Robert Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. William Farrill has appealed from his convictions for two counts of capital sexual battery in violation of section 794.011(2), Florida Statutes (1997)....

...civious battery convictions is required because there was no evidence of any pause between the sex acts. This result, however, appears irreconcilable with a line of cases addressing double jeopardy claims relating to different sex acts proscribed in section 794.011, Florida Statutes, the sexual battery statute....

...*1172 First, we note that the lewd and lascivious battery statute, under which Meshell was prosecuted, proscribes "sexual activity" with a minor, which the statute defines using a list of specifically described sex acts that is identical to the definition of sexual battery found in section 794.011. Compare § 800.04(1)(a) ("`Sexual activity' means the 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 . . .") with § 794.011(1)(h) ("`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 . . ."). Therefore, we can see no logical reason to treat the statutes differently. However, it appears that every district court in Florida that has addressed the issue, except ours, has held that each distinct sex act described in section 794.011, Florida Statutes, is a different criminal act for purposes of double jeopardy analysis, so that a separate conviction is allowed for each distinct act committed during a single criminal episode (without any temporal break)....

...d lascivious battery statutes, and the significant number *1175 of prosecutions in this state under both statutes, we certify the following question to the supreme court as an issue of great public importance: ARE THE SEX ACTS PROSCRIBED BY SECTIONS 794.011 and 800.04(4), FLORIDA STATUTES, PROPERLY VIEWED AS "DISTINCT CRIMINAL ACTS" FOR DOUBLE JEOPARDY PURPOSES, SO THAT A DEFENDANT CAN BE SEPARATELY CONVICTED FOR EACH DISTINCT ACT COMMITTED DURING A SINGLE CRIMINAL EPISODE? AFFIRMED IN PART, REVERSED IN PART AND REMANDED; QUESTION CERTIFIED. GRIFFIN and MONACO, JJ., concur. NOTES [1] § 800.04(4), Fla. Stat. (2006). [2] § 794.011, Fla....

...rida Statutes, was substantially rewritten as of October 1, 1999. See Ch. 99-201, §§ 6, 17, Laws of Florida. It was at this time that the Legislature added the definition of "sexual activity" which mirrors the definition of sexual battery found in section 794.011, Florida Statutes, and also created the offense of lewd and lascivious battery for "sexual activity" with a minor....

...We affirm the imposition of conditions of probation pursuant to section 948.03, Florida Statutes (Supp.1998), holding that attempted capital sexual battery is an offense under chapter 794, Florida Statutes. As we said in Zopf v. Singletary, 686 So.2d 680, 681 (Fla. 1st DCA 1996), attempted sexual battery is "a crime under section 794.011(2), Florida Statutes, as modified *1151 by the `attempt' statute, section 777.04, Florida Statutes." To the extent Lee v....

...FRANK, C.J., and RYDER, DANAHY, CAMPBELL, SCHOONOVER, HALL, THREADGILL, PARKER, PATTERSON, ALTENBERND, BLUE and FULMER, JJ., concur. QUINCE, J., recuses. NOTES [1] Because of his age, Kazakoff could not be prosecuted for capital sexual battery. See § 794.011(2), Fla....

...took turns sexually assaulting two female minors, ages 14 and 16. Among other offenses, the information charged the defendant with three counts of sexual battery and three counts of lewd and lascivious conduct against the 14-year-old in violation of section 794.011(3), Florida Statutes (1987). The lewd and lascivious counts track section 800.04(2), Florida Statutes (1987), which provides that "[a]ny person who ... commits an act defined as sexual battery under s. 794.011(1)(h) upon a child under the age of 16 years ......

...A new sentencing need not take place, since reversal of this count and the vacating of the sentence for this count will not affect Beber's other sentences. AFFIRMED in part; REVERSED in part. GRIFFIN, J., concurs. PALMER, J., concurs specially without opinion. NOTES [1] Section 794.011(2), Fla....

...Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee. LEWIS, J. K.J.F., a child, appeals a final disposition entered after he pled guilty to the following offenses: sexual battery, in violation of section 794.011(2)(b), Florida Statutes (2008); lewd or lascivious molestation, in violation of section 800.04(5)(c)1, Florida Statutes (2008); lewd or lascivious exhibition, in violation of section 800.04(7)(c), Florida Statutes (2008); and false imprisonment, in violation of section 787.02(1)(b), Florida Statutes (2008)....

...tempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction when the juvenile was 14 years of age or older at the time of the offense: (I) Section 794.011, excluding s. 794.011(10); (II) Section 800.04(4)(b) where the victim is under 12 years of age or where the court finds sexual activity by the use of force or coercion; (III) Section 800.04(5)(c)1....

...a level 9 offense under the 1994 sentencing guidelines, which were controlling in this case. Millien was convicted of the first degree felony offense of sexual conduct with a child between the ages of twelve and eighteen pursuant to Florida Statutes section 794.011(8)(b) (1993). Florida Statutes section 921.0012 (1993), contains the sentencing guidelines ranking *478 chart; the offense for which Millien was convicted, section 794.011(8)(b), is not listed in that chart....

...Section 794.041(2)(b) stated: (2) Any person who stands in a position of familial or custodial authority to a child 12 years of age or older but less than 18 years of age and who: . . . . (b) Engages in sexual activity with that child is guilty of a felony of the first degree.... Simultaneously, the legislature enacted section 794.011(8)(b), the elements of which are identical to section 794.041(2)(b). The old section 794.041(2)(b) was still listed in section 921.0012 in 1994; the newly enacted section 794.011(8)(b) did not find its way onto the chart in section 921.0012 as a level 9 offense until October 1, 1995....

...urred in the guidelines as written. See Roberts v. State, 715 So.2d 302, 303 (Fla. 5th DCA 1998)(holding that the defendant was entitled to the benefits of section 921.0013(3) since the crimes of sexual battery for which the defendant was convicted, section 794.011(8)(b), were not enumerated in section 921.0012 when he committed the crimes in 1994)....

...The trial court adjudicated Owens a habitual offender and sentenced him as such on all counts. Owens argues that the trial court erred in adjudicating and sentencing him as a habitual offender under count II, sexual battery with a deadly weapon. This offense is a life felony, see § 794.011, Fla....

...ense, we find no violation of section 775.021(4)(b)2. We therefore affirm appellant's convictions and sentence. We note, however, a scrivener's error in the final judgment, which erroneously lists the attempted second degree murder as a violation of section 794.011(2) (capital sexual battery) instead of section 782.04(2)(second degree murder)....

...s to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree.... See also § 777.04(1), Fla. Stat. (1993) (attempt). [3] Section 794.011, Fla....

...Accordingly, the trial court did not abuse its discretion in not admitting the exculpatory statements. Attempted Sexual Battery Kaczmar contends that the trial court should have granted his motion for judgment of acquittal on the charge of *1002 attempted sexual battery. We agree. Section 794.011, Florida Statutes (2007), governs sexual battery: (3) A person who commits sexual battery upon a person 12 years of age or older, without that persons consent, and in the process thereof uses or threatens to use a deadly weapon or use...

...“Sexual battery” is defined 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; however, sexual battery does not include an act done for a bona fide medical purpose.” § 794.011(l)(h), Fla....

...We, therefore, also certify a question of great public importance concerning the continuing validity of the holding in Abreau. Riley was charged in Count I of an amended information with capital sexual battery committed between November 1, 2002, and May 1, 2003, in violation of section 794.011(2)(a), Florida Statutes....

...PER CURIAM. The appellant, Ignacio Mora, appeals the sentence imposed by the trial court. We reverse. The appellant was charged with burglary with assault or battery in violation of section 810.02, Florida Statutes (1983), and sexual battery in violation of section 794.011(5), Florida Statutes (1983)....

...The original information for sexual battery contained a reference which we interpret as being a reference to the offense of aggravated battery. The original information on the sexual battery charge alleged in part that the defendant "used actual physical force likely to cause serious personal injury, in violation of § 794.011(3) and § 775.087, Fla....

...determined this defense cannot apply in such cases. Moreover, the courts of Florida have not shown themselves adept in fairly defining "consent" in the context of sexual encounters with minors, [4] nor is it clear that the definition of "consent" in section 794.011(1)(a), Florida Statutes, could be imported into chapter 800 by judicial fiat....

...renders section 800.04, Florida Statutes *625 (1993), unconstitutional as it pertains to a minor's consensual sexual activity? NOTES [1] In case 95-15742-CF-A-F, defendant Michael Raleigh was charged with six counts of sexual battery in violation of section 794.011(5), Florida Statutes; six counts of lewd of lascivious assault on a child in violation of section 800.04(3), Florida Statutes (these counts are charged in the alternative); three counts of sexual battery; and one count of stalking, all involving J.O....

...the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act; (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s....

...Butterworth, Atty. Gen., Tallahassee, and Steven J. Guardiano, Sr. Asst. Atty. Gen., Daytona Beach, for appellee. PER CURIAM. William Mercer appeals the judgment and sentence imposed following his conviction of one count of capital sexual battery under section 794.011(2), Fla....

...State, 459 So.2d 306, 309 (Fla. 1984). No such waiver occurred here. REVERSED. COBB, GOSHORN and THOMPSON, JJ., concur. NOTES [1] Because this issue is dispositive of Mercer's conviction, we do not address the other issues Mercer raised on appeal. [2] Section 794.011, Fla....

...Butterworth, Attorney General, Anne C. Toolan, Assistant Attorney General, Tallahassee, for Appellee. ERVIN, J. 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 *176 (1997), and lewd and lascivious conduct, proscribed by section 800.04, Florida Statutes (1997)....

...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 a...

...genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or *177 forces or entices the child to commit any such act; (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree.......

...w, 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....

...nother or the anal or vaginal penetration of another by any other object." [2] Conduct formerly proscribed as "sexual activity" was later prohibited as sexual battery and included within the classification of offenses listed as sexual batteries. See § 794.011(8), Fla....

...As a result, there is no conflict between Kolaric and this case. This distinction, however, does not apply to Velazquez v. State and King v. State . The defendants in both cases were charged and convicted of capital sexual battery, in violation of section 794.011(2)(a), Florida Statutes (1991), and were held to be entitled to instructions on lewd and lascivious assault as a permissive lesser included offense to capital sexual battery....

...NOTES [1] We express no opinion whether the same result would apply under the present version of section 800.04, Florida Statutes, which was amended as of October 1, 1999. See Ch. 99-201, §§ 6, 17, at 1187, 1211, Laws of Fla. [2] This was also the definition of sexual battery found at section 794.011(1)(h), Florida Statutes (1989), which remains the same under the 1997 version of the statute, which we construe herein....

...[1] On appeal she argues that there is no evidence that the victim was mentally defective. We disagree and affirm. Before we discuss the evidence, we must first bear in mind the precise crime charged and two definitions from the sexual battery statute. The crime is found in section 794.011(4)(e), which states: "A person who commits sexual battery upon a person 12 years of age or older without that person's consent ... commits a felony of the first degree ... when the victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact." Section 794.011(1)(a) defines the term consent as "intelligent, knowing, and voluntary consent and does not include coerced submission." Section 794.011(1)(b) defines mentally defective as "a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct." At trial the state adduced the testimony of Dr....

...ing the nature of his conduct." She adds that while Dr. Ram testified as to the victim's low IQ, relatively young development age and mental impairment, that testimony does not establish that the victim was "mentally defective" within the meaning of section 794.011(1)(b)....

...to raise and preserve issue in the trial court). Conviction for sexual battery affirmed; conviction for lewd and lascivious act reversed; and remanded for resentencing in accordance with this opinion. BLUE, A.C.J., and WHATLEY, J., Concur. NOTES [1] § 794.011(5), Fla....

...rime" after September 1, 2005. See Fla. Stat. § 948.30(3). Moreover, defendant was previously convicted of lewd and lascivious assault on a child, pursuant to Section 800.04, Florida Statutes, and of sexual battery on a helpless victim, pursuant to Section 794.011, Florida Statutes....

...Accordingly, we quash the Second District’s decision in Marston and approve the Fourth District’s decision in Va-rona. FACTS AND PROCEDURAL HISTORY On June 19, 2008, the State charged Marston with three counts of sexual battery (deadly weapon or force causing injury) (§ 794.011(3), Fla....

...An effective sentence of 88 days in jail for a serious offense added to a life sentence does not, in my view, raise a reasonable likelihood of vindictiveness and Kopko has not met his burden of proving actual vindictiveness. I would affirm. NOTES [1] § 800.04, Fla. Stat. (Supp.1986). [2] § 794.011(2), Fla....

...Public Defender, Daytona Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee. COWART, Judge. The defendant was charged with sexual battery on a person twelve years of age or older. § 794.011(5), Fla....

...If this is correct, then to have sexual intercourse with a consenting child twelve years of age or older but under sixteen years of age would violate section 800.04(1). That statutory offense would then be a lesser included offense of a charge under section 794.011(5), which requires *15 a sexual penetration of a nonconsenting person twelve years of age or older....

...Lanier , which the state argues is controlling. We cannot reconcile that decision with prior law, including previous decisions from the supreme court. For that reason, we reluctantly follow it. Under Lanier, section 800.04, lewd assault is now a necessarily lesser included offense of section 794.011(5), sexual battery (with or without chastity and consent), in prosecutions where the victim is 12 to 16 years of age, as in the instant case....

...As such, it should have been stricken by the trial court. But, the addition of Count II after defendant's only opportunity to confront and cross-examine the victim, while the victim's testimony was being videotaped for trial, added no element not already essential to the charge under section 794.011(5); therefore, the defendant's constitutional due process and confrontational rights were not violated....

...version of Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1983), that chapter 794, Sexual Battery, Fla. Stat. (1983), did not prohibit and punish sexual intercourse with an unchaste consenting twelve year old girl because non-consent is essential under § 794.011(5) and previous chaste character is generally essential under § 794.05....

...Stat., the "lewd assault" statute. [2] The information in Lanier alleged the defendant did "handle, fondle or make an assault on [S] by engaging in sexual intercourse... ." Lanier v. State, 443 So.2d 178, 179 (Fla. 3d DCA 1983). [3] The definition of sexual battery in § 794.011(1)(h), Fla....

...[4] We note our decisions in Caulder v. State, 500 So.2d 1362 (Fla. 5th DCA 1986) and Hightower v. State, 488 So.2d 106 (Fla. 5th DCA 1986), review granted, No. 68,717 (Fla. Sept. 15, 1986) hold that § 800.04 is not a lesser included offense of sexual battery under § 794.011(2) but distinguish them because the children there were under 12 years of age.

...vidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." The term "child molestation" is defined as conduct proscribed by section 794.011 or section 800.04 when committed against a person sixteen years of age or younger. § 90.404(2)(b)(2). Thus, to be admissible under this section, the collateral crime evidence must constitute a crime, wrong, or act of child molestation under section 794.011 or 800.04, Florida Statutes....

...Appellant argues that the trial court abused its discretion in admitting the photographs because they were not relevant and were not admissible under section 90.404(2)(b)(1) as collateral acts of molestation. He contends that taking pornographic photos of a child is not a crime under either section 794.011 or 800.04, but, instead, a violation of a different statute, section 827.071, Florida Statutes....

...Neither of Kendrick’s arguments supports reversal. First, Kendrick qualifies for the sexual predator designation under section 775.21(4)(a)(l)(a), Florida Statutes (2003), because his offense is an attempt of a life felony under chapter 794, Florida Statutes. See § 794.011(3), Fla....

...Public Defender, Tallahassee, for appellant. Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee. THOMPSON, Judge. Appellant Lucian Hawkins was convicted of two counts of sexual battery using slight force, a second degree felony, pursuant to § 794.011(5), Fla....

...of 55, and her social age equivalent is that of a 6 1/2 year old child. She is able to perform some minimal personal care tasks, but is unable to live and function independently without care. The victim is extremely fond of Hawkins, her 19 year old nephew. Hawkins was initially charged pursuant to § 794.011(4)(a), Fla....

...e offender knows to be mentally defective. Appellant was convicted of two counts of the lesser included offense of *490 sexual battery using physical force and violence not likely to cause serious personal injury, a second degree felony, pursuant to § 794.011(5), Fla....

...prohibition set forth in Rule 3.701 d.11., "Reasons for deviating from the guidelines shall not include factors relating to the instant offense for which convictions have not been obtained." Hawkins could have been, but was not, charged pursuant to § 794.011(4)(e), Fla. Stat. (1985) with sexual battery of a victim who is mentally deficient. The jury was instructed that it could find appellant guilty of first degree felony sexual battery if it found either that the victim was physically helpless to resist (§ 794.011(4)(a)) or that defendant knew her to be mentally defective (§ 794.011(4)(e)). The jury instead found Hawkins guilty of second degree felony sexual battery with the use of force not likely to cause serious physical injury, a lesser included offense, pursuant to § 794.011(5)....

...2d DCA 1987); Powell v. State, 495 So.2d 828 (Fla. 1st DCA 1986). Accordingly, the fact that the victim was particularly vulnerable because of her mental retardation is an improper grounds for departure in this case involving the offense of sexual battery under § 794.011, Fla....

...l was ineffective in failing to raise this issue on appeal. We agree. Sexual battery is defined 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." § 794.011(1)(h), Fla....

...Frost, Jr., Public Defender, and Jeanine Beard Sasser, Asst. Public Defender, Jacksonville, for appellant. Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee. PER CURIAM. Defendant was convicted of sexual battery with a deadly weapon. Section 794.011(3), Florida Statutes (1981)....

...[3] The trial judge refused to allow the proffered testimony on the strength of section 794.022(2), Florida Statutes (1981), which provides: (2) Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under s. 794.011; however, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court outside the presence of the jury that such activity shows such a relation to the conduct involved in the case that it t...

...We affirm the conviction, but we reverse and remand for correction of the sentence. The appellant was charged by information with committing on or about January 8, 1988, sexual battery on a person twelve years of age or older with the use of physical force not likely to cause serious personal injury, contrary to section 794.011(5), Florida Statutes....

...Appellant urges that there was insufficient evidence of lack of consent for the case to go to the jury. However, we determine that it was for the jury to evaluate the conflicting evidence as to whether or not the intercourse was consensual. To obtain a conviction of sexual battery under section 794.011(5), the state is obliged to prove that appellant committed an act upon or with the victim whereby the appellant's sexual organ or other object penetrated or had union with the vagina of the victim without her consent, by use of force not likely to cause serious injury. Under section 794.011(1)(a), consent must be "intelligent, knowing and voluntary" and cannot be "construed to include coerced submission." Appellant argues that this is a case of sexual intercourse resulting from a "failure of communication" between the pa...

...d by his reliance on O'Bryan v. State, 324 So.2d 713 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 1184 (Fla. 1976), and similar cases arising under the forcible rape statute repealed in 1974. See Hufham v. State, 400 So.2d at 135 (under new statute (section 794.011, Florida Statutes (1974)), "consent" is a relative term to be viewed under circumstances of each case, but by standards established by the new statute, and is essentially a question for the jury); McIlwain v....

...Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee. Before HAVERFIELD, C.J., and PEARSON and HUBBART, JJ. PER CURIAM. Defendant, Jimmy Hudson, appeals his conviction for sexual battery committed by using physical force not likely to cause serious personal injury. [Section 794.011(5), Florida Statutes (1977).] [1] Hudson primarily argues that the jury's guilty verdict is not supported by competent substantial evidence....

...ual battery case because nearly all sexual battery cases inflict emotional hardship on the victim." 504 So.2d at 534, quoting Lerma, 497 So.2d at 739. The district court of appeal attempted to distinguish the crime of sexual battery prosecuted under section 794.011(1)(h), Florida Statutes (1985), and the lesser crime of lewd and lascivious conduct as proscribed by section 800.04, Florida Statutes (1985), citing its recent decision in Kokx v....

...The issue is emotional trauma — not physical trauma. We conclude that if the principles we have adopted for sentencing departure are to be applied in a logical and consistent manner, the Lerma rule, if applicable to the more serious offense of sexual battery under 794.011, should also be applicable to the less serious crime of lewd and lascivious conduct under section 800.04, Florida Statutes....

...d or lascivious molestation on a person less than twelve years old. Count III specifically charged Diaz with sexual battery on a person less than twelve years old by inserting his fingers into the victim's vagina on October 26, 2006, in violation of section 794.011(2)(a), Florida Statutes (2006)....

...State, 92 So.2d 259, 260 (Fla. 1957)). For example, in Tillman v. State, 559 So.2d 754, 754 (Fla. 4th DCA 1990), this court reversed a conviction for sexual battery where the State's information *793 charged the defendant with "`penetration'" but not "`union with'" under section 794.011(1)(h), Florida Statutes (1987), and the State's evidence did not establish that penetration occurred....

...We find that the circumstantial evidence concerning the identity of the perpetrator was sufficient to support the conviction and affirm. Appellant, Robert Earl Fowler, was charged by information on November 29, 2006, for one count of sexual battery on a child under 12, per section 794.011(2)(a), Florida Statutes (2004), and one count of lewd and lascivious molestation on a child under 12, per section 800.04(5)(b), Florida Statutes (2004)....

...State, 293 So.2d 44, 45 (Fla.1974)). Thus, a "judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party." Id. Appellant was adjudicated guilty of violating sections 794.011(2)(a) and 800.04(5)(b), Florida Statutes. To prove a violation of either law, the State must show that the proscribed conduct occurred and that the appellant was the perpetrator. §§ 794.011(2)(a), 800.04(5)(b), Fla....

...e after the trial had been completed, citing O'Bryan v. State 692 So.2d 290 (Fla. 1st DCA 1997). Though the information charged that appellant did unlawfully commit a lewd assault by "committing an act defined as sexual battery under Florida Statute § 794.011(1)(h) upon a child under the age of 16 years," the information could just as well have charged that appellant did unlawfully commit a lewd act by "committing an act defined as sexual battery, etc." The substance of the offense charged was that appellant did unlawfully commit an act defined as sexual battery under Florida Statute § 794.011(1)(h) upon a child under the age of 16 years....

...Appellant was charged by information with sexual battery of a person less than 12 years of age by “union with and/or penetration of the victim’s vagina by the penis of [appellant]” (count 1), and “oral penetration of the victim’s mouth by the penis of [appellant]” (count 2), pursuant to section 794.011(2)(a), Florida Statutes (2006)....

...Her testimony did not indicate a temporal break between the molestation and the sexual battery in either episode. In Beahr v. State, 992 So.2d 844, 845 (Fla. 1st DCA 2008), this court considered a similar double jeopardy claim where a defendant was convicted of sexual battery of a child less than 12 years of age pursuant to section 794.011 (2)(a) and lewd or lascivious molestation of a victim less than 12 years of age pursuant to section 800.04(5)(b), for acts committed during the same criminal episode....

jury. We quash the instant decision. Under section 794.011(5), Florida Statutes (1975),1 an information

...Appellant also contends that the trial court erred by sentencing appellant to a term in excess of the statutory maximum sentence of thirty years for the offense of attempted sexual battery on a child. Appellee, State, concedes error on both issues. Section 794.011(2), Florida Statutes (1989), provides that the commission of a sexual battery by a person over 18 years upon a child under 12 years, the crime with which appellant was originally charged, constitutes a capital felony....

...Finally, although the issue is now moot, we note our grave concerns regarding the admissibility of child hearsay statements made to the lead detective. Reversed and remanded for further proceedings consistent with this opinion. ALTENBERND, A.C.J., and STRINGER, J., Concur. NOTES [1] § 800.04, Fla. Stat. (1997). [2] § 794.011(2), Fla....

...g, so long as no individual sentence exceeds the statutory maximum. Mitchell. Affirmed in part, reversed in part, and remanded with instructions. SCHOONOVER, A.C.J., and THREADGILL and ALTENBERND, JJ., concur. NOTES [1] Sexual battery, as defined in § 794.011(3), Fla....

...ppellant. Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. William Franklin Sharp appeals his conviction for two counts of sexual battery in violation of section 794.011(2)(a), Florida Statutes (1997)....

...The Fourth District determined that the age of the offender was not an element of the offense and affirmed the conviction. In doing so, the court cited Jesus v. State, 565 So.2d 1361 (Fla. 4th DCA 1990), in which the court determined that the age of the offender charged with sexual battery under section 794.011, Florida Statutes, was not an element of the offense but was a factor to consider when imposing sentence....

...of the said [victim], and did penetrate the vagina of the said [victim] with an object, to-wit, his fingers without the consent of the said [victim], and in the process thereof did threaten to use or used a deadly weapon, a firearm, in violation of Section 794.011, Florida Statutes....

...At the close of the trial, the court denied Bragg's motion for directed verdict. At the charge conference the trial judge announced that he would instruct the jury that the sexual battery charge against Bragg included the lesser-included offenses of sexual battery with slight force under section 794.011(5), Florida Statutes (1981), as well as battery, a misdemeanor proscribed by section 784.03. Defense counsel objected to any instruction that sexual battery with slight force was a lesser-included offense of the crime charged. The trial judge overruled the objection. His instructions to the jury included the lesser charge under section 794.011(5), as well as an instruction on battery. The jury returned a verdict finding Bragg not guilty of armed robbery. On the charge of sexual battery, the jury found him guilty of the lesser-included offense of sexual battery with slight force under section 794.011(5)....

...In order to clarify the categorization of offenses, the supreme court approved a schedule which contains a list of the lesser offenses applicable to each crime charged. Bragg was charged with sexual battery while using or threatening to use a deadly weapon, a violation of section 794.011(3). Under the schedule, sexual battery with slight force (§ 794.011[5]) is a category 1 necessarily included offense "if `uses a deadly weapon' or `uses actual physical force likely to cause serious personal injury' is charged." In In re Standard Jury Instructions in Criminal Cases, the supreme court empha...

...orce. Thus, sexual battery using slight force is not a necessarily included offense of sexual battery under subsection (3), when the defendant is only charged with the use or threatened use of a deadly weapon. The question remains then as to whether section 794.011(5) is a category 2, lesser-included offense of section 794.011(3)....

...In it, he only contests whether the sexual relations with the victim were consensual. However, “willingness or consent of the victim” is not a consideration with respect to the crime of Sexual Battery upon a Child by a Person in Familial or Custodial Authority. § 794.011(8), Fla....

...A two-count information charged that Jozens: COUNT I: ... did commit a sexual battery upon a person eleven (11) years or younger, to-wit: [name], 6 or 7 years of age, by penile union or penetration of mouth, anus or vagina, or digital penetration of anus or vagina, in violation of Section 794.011(2), Florida Statutes....

...cluded offense of battery. He now asserts that both counts as charged are fundamentally defective, arguing for reversal despite the failure to raise the matter below. We will address the counts in order. Under Count I, Jozens was charged pursuant to section 794.011(2), Florida Statutes (1989), which provides: (2) A person 18 years or older who commits sexual battery upon, or injures the sexual organs of, a person less than 12 years of age in an attempt to commit sexual battery upon such person commits a capital felony, punishable as provided in ss....

...the genitals, or any act of conduct which simulates that sexual battery is being or will be committed upon any child under the age of 15 years or forces or entices the child to commit any such act; (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree......

...[1] § 800.04, Fla. Stat. (Emphasis added.) Count II can only be construed in one way, to wit, as charging Jozens with violating section 800.04(3) above. For the reasons set forth below, we believe Count II as framed charged Jozens with a nonexistent crime. Sections 794.011(2)-(5) of the sexual battery statute proscribe the commission of sexual battery as defined in subsection (1)(h) upon persons less than 12 years of age regardless of consent, and upon persons 12 years of age or older absent consent....

...)]." State v. Hightower, 509 So.2d 1078, 1079 (Fla. 1987). Under section 800.04(3), one cannot be convicted of a lewd and lascivious act committed upon a child under 12 years of age for conduct that also constitutes the crime of sexual battery under section 794.011. Chaplin v. State, 622 So.2d 165 (Fla. 2d DCA 1993). In the instant case, the victim was less than 12 years of age. Any activity proscribed in section 794.011(1)(h), perpetrated upon a victim of less than twelve years of age necessarily constitutes the crime of sexual battery, pursuant to section 794.011(2), where consent is irrelevant, and by definition cannot be considered lewd and lascivious conduct under section 800.04....

...(10) “Sexual offender” shall have the meaning ascribed to such term in Section 943.0435, Florida Statutes. 13 Case: 15-14336 Date Filed: 01/25/2017 Page: 14 of 15 (11) “Sexual offense” means a conviction under Section 794.011, 800.04, 827.071, 847.0135(5) or 847.0145, Florida Statutes, or a similar law of another jurisdiction in which the victim or apparent victim of the sexual offense was less than sixteen (16) years of age, excluding Section 794.011(10), Florida Statutes. (12) “Sexual predator” shall have the meaning ascribed to such term in Section 775.21, Florida Statutes. (13) “Temporary residence” means a place where the person abides, lodges, or resid...

...ve days in any month and which is not the person’s permanent residence. Sec. 21-281. - Sexual Offender and Sexual Predator Residence Prohibition; Penalties. (a) It is unlawful for any person who has been convicted of a violation of Section 794.011 (sexual battery), 800.04 (lewd and lascivious acts on/in presence of persons under age 16), 827.071 (sexual performance by a child), 847.0135(5) (sexual acts transmitted over computer) or 847.0145 (selling or buying of...

...f age or older, but less than 18 years old, by engaging in sexual battery (the penetration of, or union with, C.W.'s vagina by Appellant's penis) while Appellant stood in a position of familial or custodial authority over the victim, in violation of section 794.011(8)(b), Florida Statutes (2004 and 2005)....

...mission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. 2. For the purposes of this paragraph, the term "child molestation" means conduct proscribed by s. 794.011 or s....

...800.04 when committed against a person 16 years of age or younger. The prosecutor noted that although "propensity" evidence still is not allowed under *1130 statutory subsection (2)(a), Appellant's charged crimes fall within the amended subsection (2)(b) language because the offenses are a violation of section 794.011, Florida Statutes (2005), and constitute "child molestation." Noting that propensity is now admissible, the trial court correctly acknowledged that the law still requires the court to conduct a balancing inquiry pursuant to another sa...

...tside" of the sentencing guidelines range. Kerney was convicted of a first-degree felony and was sentenced to twenty years in prison under the Criminal Punishment Code. His sentence was not outside the guidelines, nor was it an illegal sentence. See § 794.011(8)(b), Fla....

...The record in this case supports Mantle's position. At the plea hearing, Mantle pled nolo contendere to sexual battery not likely to cause personal injury, a lesser charge than the crime with which he was charged in the information (sexual battery by multiple perpetrators, §§ 794.011(5) & 794.023(2), Fla....

...If he does so, the state may proceed to prosecute him for the more serious felony offenses charged in the informations for which he could receive life imprisonment. REVERSED and REMANDED. DAUKSCH, J., concurs. GRIFFIN, J., concurs in result only. NOTES [1] § 794.011(5), Fla....

...Rosenbaum, Fort Lauderdale, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and David S. Morgan and Rebecca Roark Wall, Asst. Attys. Gen., Daytona Beach, for appellee. PER CURIAM. Carl Michael Edwards' conviction under count one for violation of section 794.011(4)(e), Florida Statutes, sexual battery upon a mentally defective person, a first-degree felony is affirmed....

...Section 800.04 provides in part: Lewd, lascivious, or indecent assault or act upon or in presence of child. — Any person who: (1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner; ... . (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years; or ......

...Because the reversal of the two convictions affects the defendant's scoresheet, we reverse all of his sentences and remand for resentencing. Affirmed in part, reversed in part, and remanded. RYDER, A.C.J., and LAZZARA, J., concur. NOTES [1] § 794.041(2)(b), Fla. Stat. (1991). [2] § 800.04(1), Fla. Stat. (1991). [3] § 794.011(3), Fla....

...and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions of this act. Here, Brosz committed sexual battery in violation of section 794.011(2), Florida Statutes....

...The court based its ruling on section 794.022(2), Florida Statutes (1985) — Florida's rape-shield statute — which provides: Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011....

...Consequently, we affirm the judgments of conviction and sentences imposed on both counts involving the stepson (Trial Case No. 83-1686-CF). Accordingly, the judgments and sentences on appeal are AFFIRMED IN PART AND REVERSED IN PART. WALDEN, J., and BARKETT, ROSEMARY, Associate Judge, concur. NOTES [1] § 794.011(2), Fla. Stat. (1983); § 794.011(4)(e), Fla....

...It may be possible that the trial judge, as the finder of fact in the nonjury trial, believed that defendant committed an assault or battery upon the victim which was of a sexual nature yet was not sufficiently proven so as to have contained all the elements required under section 794.011, Florida Statutes (1983), for a conviction of sexual battery....

...d substitutes the following opinion. Appellant, James Pittman, seeks review of a jury verdict finding him guilty of lewd or lascivious battery, § 800.04(4)(a), Fla. Stat. (2006), as a lesser included offense of the primary charge of sexual battery, § 794.011(3), Fla....

...een years. We find Pittman's argument has merit and reverse the judgment of conviction and sentence in this case. FACTS AND PROCEDURAL HISTORY On April 12, 2006, the State charged Pittman with sexual battery with a deadly *861 weapon in violation of section 794.011(3), and kidnapping with a weapon in violation of sections 787.01(2) and 775.087 of the Florida Statutes (2006)....

...ructions in Criminal Cases, see Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 800.04, the crime of lewd or lascivious battery under section 800.04(4)(a) is a permissive lesser included offense of a sexual battery found under section 794.011(3)....

...BACKGROUND The State charged Clark with sexual battery on a person physically helpless to resist, after police discovered the intoxicated victim, T.D., asleep in a bedroom inside appellant's apartment, and forensics tests confirmed that sexual activity had taken place. See § 794.011(4)(a), Fla....

...The jury convicted Clark of sexual battery with multiple perpetrators on a person physically helpless to resist. The court sentenced him to fifteen years' imprisonment. ANALYSIS The State had to prove at trial, among other things, that T.D. was "physically helpless to resist" during the sexual encounter with Clark. See § 794.011(4)(a), Fla. Stat. (2001). "Physically helpless" means "unconscious, asleep, or for any other reason physically unable to communicate unwillingness to an act." § 794.011(1)(e), Fla....

...As is true of many cases where the State proves guilt solely with circumstantial evidence, reasonable jurors may well have differed on the determinative question here: whether T.D. was, in fact, physically helpless to resist appellant's and his roommates' sexual overtures. See § 794.011(4)(a), Fla....

...Accordingly, we reverse the orders of dismissal in both cases and remand these cases to the trial court for proceedings consistent with this opinion. REVERSED and REMANDED. COBB and GRIFFIN, JJ., concur. NOTES [1] § 800.04(1), Fla. Stat. (1985). [2] § 794.011(2), Fla. Stat. (1985). [3] § 794.041(2)(b), Fla. Stat. (1985). [4] § 800.04(1), Fla. Stat. (1984). [5] § 794.011, Fla....

...Accordingly, the defendant's conviction for grand theft is affirmed, but the sentence is reversed and the cause is remanded for resentencing consistent with this opinion. CONVICTION AFFIRMED, SENTENCE REVERSED. HERSEY, C.J., and HURLEY and DELL, JJ., concur. NOTES [1] § 810.02(2)(b), Fla. Stat. (1983). [2] § 794.011(3), Fla....

...d the jury should not only be properly instructed but also given alternative verdict forms so they can either find or not find that a weapon or firearm was used. Id. at 571 n. 3. It has also been determined that a conviction for sexual battery under section 794.011, Florida Statutes, may be subject to enhancement where the offense is committed with a firearm and the weapon is not included in the charge....

...In Ingraham, enhancement was upheld despite the fact that the defendant could have been charged with committing the offense by use of the deadly weapon. The court said: The state charged the appellant with sexual battery with the use of "force likely to cause serious personal injury" under section 794.011(3) and included in the charge that he "did in the process thereof use, threaten to use, or carried a firearm." The first quoted portion of the charge accuses him of the crime while the second quoted portion makes operative the "reclassification" statute....

...an alternative way of committing the crime. He was also charged, incidentally, with using, threatening to use or carrying a firearm. As we said, this was to make the enhancement operative. Id. at 222-223. We also note that the degree of crime under section 794.011(3), (4) also, as in a battery, increases with the degree of seriousness of the defendant's act or risk of injury to the victim....

...ttery and one count of lewd and lascivious assault (No. 94-217), one count of capital sexual battery (No. 94-218), and one count of lewd and lascivious assault (No. 94-219), on his two stepdaughters, then ages seven and ten, in violation of sections 794.011(2)(a) and 800.04, Florida Statutes. Section 794.011(2)(a), Florida Statutes (1993) provides: A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss....

...93-406, § 13 at 2941, Laws of Fla. See generally Ivey v. Chiles, 604 So.2d 542 (Fla. 1st DCA 1992) (treating continuing offense as occurring on first date charged). [6] The age of the victim is an element of both the crime of attempted capital sexual battery, § 794.011(2)(a), Fla.Stat....

...He contends doing so was in error because he was convicted of a "capital" offense rather than a life felony. Jones also argues that the mandatory life sentence without parole in a case of sexual battery is a violation of the state and federal constitutional prohibitions against cruel and unusual punishment. We affirm. Section 794.011, Florida Statutes, provides that "[a] person 18 years of age or older who commits sexual battery upon a person less than 12 years of age commits a capital felony." Capital felonies are punishable under section 775.082, Florida Statutes, which provides for punishment by death or life imprisonment without parole....

...As to all other issues raised, we also find no reversible error or abuse of discretion. KLEIN and TAYLOR, JJ., concur. NOTES [1] Because neither party addresses how the practical outcome would differ had Jones been sentenced to life imprisonment without the possibility of parole as a capital felon, pursuant to section 794.011, rather than as a prison releasee reoffender, we decline to comment on any such distinction between the statutes.

...Public Defender, Tampa, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee. FRANK, Judge. George Dailey was charged with and convicted on three counts of capital sexual battery on a child under twelve years of age. § 794.011(2), Fla....

...ocument its expenses. In all other respects the convictions and sentences are affirmed. CONVICTION AND SENTENCES AFFIRMED; COSTS OF PROSECUTION REVERSED. DELL, C.J., and GUNTHER, J., concur. NOTES [1] See § 794.041(2)(b), Fla. Stat. (1991). [2] See § 794.011(2), Fla....

...Moreover, the criminal intent element of the offense "must be proved by some act or deed evidencing it." Clark v. State, 56 Fla. 46, 47 So. 481 (1908). Accord Reed v. State, 150 Fla. 269, 7 So.2d 103 (1942). A definition of attempted sexual battery requires consideration of sections 777.04 and 794.011. Section 777.04, Florida Statutes (1987) defines "attempt" as any act taken toward the commission of an offense. Section 794.011(1)(h), Florida Statutes (1987), defines sexual battery as the oral, anal, or vaginal penetration by, or union with, the sexual organ of another....

...his court would have affirmed the imposition of this condition upon England as a general condition of probation. However, the attached judgment only confirms that England was convicted of sexual battery on a person 12 years or older, in violation of section 794.011(3), Florida Statutes (1987)....

...trial court for resentencing. In Case No. 89-3257-CF, appellant was convicted of three counts of sexual battery by use of, or threats to use, a deadly weapon or by actual use of physical force likely to cause serious personal injury, in violation of Section 794.011(3), Florida Statutes (1987); armed burglary, with an assault, in violation of Section 810.02(2)(a) and (b), Florida Statutes (1987); and kidnapping, in violation of Section 787.01(2), Florida Statutes (1987)....

...abitual offender statute. Burdick v. State, 594 So.2d 267 (Fla. 1992). Accordingly, insofar as the burglary and kidnapping convictions are concerned, appellant's first argument lacks merit. The three sexual battery convictions are all life felonies. Section 794.011(3), Fla....

...In this case, there is a single criminal episode: The victim testified at trial that the conduct at issue did not "happen [to her] at any other time." There is also a single criminal act within that episode: The victim testified to only a single touching of a body part prohibited by sections 800.04(5) and 794.011(1)(h), specifically Mr....

...ading or the proof adduced at trial."). Lewd or lascivious molestation requires proof of an intentional touching of certain body parts, and sexual battery requires proof of penetration or union with those same body parts. The criminal act under both section 794.011(2)(a) and section 800.04(5) is an intentional touching of the type prohibited by the respective statutes....

...Duffy, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Michael A. Rogers (appellant) appeals his conviction of one count of capital sexual battery on D.B., a child under 12 years of age, by a defendant age 18 or older, in violation of section 794.011(2)(a), Florida Statutes (2004)....

...4th DCA 1990), where the structure and language of the statute in Jesus is compellingly analogous to section 800.04(5) governing lewd or lascivious molestation. See also Toussaint v. State, 755 So.2d 170 (Fla. 4th DCA 2000). In Jesus, the defendant was convicted of capital sexual battery of a child under section 794.011, Florida Statutes. Section 794.011(1)(h) defines sexual battery. Section 794.011(2)(a) goes on to state that "[a] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss....

...Id. This court affirmed. Id. at 1362. As in both Jesus and Toussaint, the age of the defendant is not an element of the crime of lewd or lascivious molestation. Section 800.04(5), governing lewd or lascivious molestation, is structured similarly to section 794.011....

...ure sentence. However, we affirm this case because Hoffman presented a valid reason for the departure sentence through the testimony of Dr. Carpenter. Affirmed. THREADGILL, A.C.J., and PARKER, J., Concur. NOTES [1] Hoffman was charged with violating section 794.011(8)(b), Florida Statutes (1997).

...*565 Carey Haughwout of Tierney & Haughwout, West Palm Beach, for petitioner. Robert A. Butterworth, Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for respondent. PER CURIAM. Petitioner is charged with violating section 794.011(2)(a), Florida Statutes (1999), a capital felony, by "inserting his finger into [a child's] vagina." Bond was denied at the first appearance, pending a full bond hearing before the judge to whom the case was assigned....

...vorable to the state which is fairly and reasonably inferable from that evidence. Id. "`Mentally defective' means a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct." § 794.011(b), Fla....

...2348, 147 L.Ed.2d 435 (2000), were to be applied in a knee-jerk fashion, we conclude that an affirmance is appropriate in this case, given the undeniable fact that the matter of Mr. Perritte's age was never in question. Mr. Perritte was charged by information with having violated section 794.011(2)(a), Florida Statutes (2001), by committing a sexual battery on diverse dates over a two-year period on a victim who was alleged to be between the ages of 9 and 11 at the time of the offense....

...ases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The Florida statutes associated with the offense of capital sexual battery may well be impacted by this decision. Section 794.011(2)(a), which defines sexual battery, states: A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss....

...than 18 years of age who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115....

...3.190(h)(4). Wykle's final argument on appeal is that the trial court erred in denying his motion for a judgment of acquittal as to count I of the amended information. Count I originally charged Wykle with committing a sexual battery upon L.C. in violation of section 794.011(2), Florida Statutes (1991), between the dates of 1 July 1991 and 31 August 1991....

...Michael Luther contends that his double jeopardy rights were violated when the lower court declared a mistrial, in the middle of his jury trial, upon discovering that the state had failed to arraign him on a second amended information. [1] Luther had originally been charged with sexual battery under section 794.011(4)(c), Florida Statutes (Supp. 1992). After declaring the mistrial, the court permitted the state to arraign Luther on the new information, which charged that his acts violated section 794.011(5), Florida Statutes (Supp....

...October 1, 2010. *1226 Garry L. Wood, Palatka, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee. *1227 COHEN, J. Jim Bruce, Appellant, was charged, pursuant to section 794.011(5), Florida Statutes, with sexual battery for performing oral sex upon the victim, K.C....

...From his judgment and sentence, [1] Pozek takes his timely appeal. Pozek contends that the trial court erroneously denied his motion for judgment of acquittal on the grounds that the state failed to prove that Pozek had familial or custodial authority over the victim. § 794.011(8)(b), Fla....

...vidence was admissible to corroborate the testimony of a minor victim of sexual battery, the definition is nonetheless helpful in deciding whether sufficient evidence of familial or custodial authority has been presented to uphold a conviction under section 794.011(8)(b)....

...body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. § 2907.01, Ohio Revised Code (Baldwin 1998). [2] Florida's paragraph 794.011(1)(h) defines sexual battery 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; however, sexual battery does not include an act done for a b...

...have a correct score sheet before it on re-sentencing. See McGreevey v. State, 717 So.2d 1111 (Fla. 5th DCA 1998). REVERSED and REMANDED FOR RE-SENTENCING UNDER A RECALCULATED SCORE SHEET. COBB, W. SHARP and GOSHORN, JJ., concur. NOTES [1] Paragraph 794.011(8)(b) of Florida's sexual battery statute provides: Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a...

...oral union with sexual organs is sufficient). This difference would not preclude finding the Florida sexual battery statute analogous because the element of penetration is one of the alternatives in Florida's sexual battery statutes. [3] See, e.g., § 794.011(2)(a) (sexual battery upon person less than 12 years of age is a capital felony); § 794.011(3) (sexual battery on person 12 years of age or older, with use of deadly weapon or actual physical force likely to cause serious injury is a life felony); § 794.011(4) (sexual battery on person 12 or older who is helpless to resist, or who is threatened, coerced, drugged, mentally defective, or physically incapacitated or if the offender is a law enforcement officer, is a first degree felony); § 794.011(5) (sexual battery upon a person 12 or older without physical force or violence is a second degree felony); § 794.011(8) (offender in position of familial authority to victim between 12 and 18 years old is second degree felony)....

...[4] Specifically, section 921.0012 sets forth an "offense severity ranking chart" to be used with the score sheet to compute a sentence score for felony offenders. It assigns various "offense levels" to different sexual battery offenses. For example, a subsection 794.011(5) violation is a level 8 offense, a paragraph 794.011(8)(b) violation is a level 9 offense, and a subsection 794.011(3) violation is a level 10 offense....

...ty-four cents of costs incurred by the Public Defender's Officer." First, the trial court erred by sentencing appellant to fifteen years in prison followed by thirty years probation on a life felony. Sexual battery with great force is a life felony. § 794.011(3), Fla....

...Greenberg and Patricia Ash, Asst. Attys. Gen., for appellee. Before HUBBART, FERGUSON and GERSTEN, JJ. PER CURIAM. The defendant Rolando Gonzalez appeals a final judgment of conviction and sentence of life imprisonment for sexual battery on a child twelve years of age or under. § 794.011(2), Fla....

...The State concedes that the appellant's sentence, fifty (50) years imprisonment and ten (10) years probation, consecutively, was beyond the statutory maximum of thirty (30) years for each count of attempted sexual battery upon a child. The sentence is thus, vacated and remanded for resentencing pursuant to Florida Statutes, § 794.011(2) and § 777.04(4)(a)....

...t ever became effective. Therefore, section 921.001(4)(b) was never legally amended to grant the option. NOTES [1] § 782.04, Fla.Stat. (1993); § 777.04(1), Fla. Stat. (1991). [2] § 787.01(1)(a), Fla.Stat. (1991); § 775.087, Fla.Stat. (1993). [3] § 794.011, Fla.Stat (Supp.1992); § 777.04(1), Fla.Stat....

...Delva, 575 So.2d 643, 644-45 (Fla. 1991) (citation omitted). “Sexual battery” is defined 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.” § 794.011(1)(h), Fla....

...Before ROTHENBERG, EMAS, and FERNANDEZ, JJ. ROTHENBERG, J.  Jeff Scott, the defendant, appeals from a final judgment of conviction and sentence for three counts of sexual activity with a child by a person in familial or custodial authority, a first-degree felony. § 794.011(8)(b), Fla....

...Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee. FRANK D. UPCHURCH, Jr., Judge. Appellant was charged by a four count information with sexual battery upon a person eleven years of age or younger which is a capital felony under section 794.011(2), Florida Statutes (1979). Section 794.011(2) provides: A person 18 years of age or older who commits a sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in §§ 775.082 and 921.141......

...Both children were students at Venice High School, and D.P. also was a member of the swim team. LaMorte entered a plea of no contest in case 05-CF-10351 to the first-degree felony offense of sexual battery by a person in custodial authority in violation of section 794.011(4)(e), Florida Statutes (1981-1983), for acts committed upon D.P., a child over the age of eleven years but less than eighteen, between August 1, 1981, and February 18, 1984....

...Public Defender, Bartow, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee. CAMPBELL, Acting Chief Judge. Appellant appeals his judgment and sentence for burglary and two counts of sexual battery in violation of sections 794.011(4) and 794.011(5), Florida Statutes (1983). Appellant first contends that the trial court erred in denying his motion for judgment of acquittal on the charge of sexual battery by threat of force or violence likely to cause serious personal injury in violation of section 794.011(4). He also argues that it was error for the trial court to convict and sentence him for violations of both sections 794.011(4) and 794.011(5) when only one penetration occurred. We find no merit in appellant's first issue on appeal. Appellant was charged with sexual battery by force or violence likely to cause serious personal injury in violation of section 794.011(4) and, also, sexual battery by force or violence not likely to cause serious personal injury in violation of section 794.011(5)....

...Therefore, the trial court was correct in denying appellant's motion for judgment of acquittal on the sexual battery by force and violence likely to cause serious personal injury charge. Appellant's conviction and sentence for sexual battery in violation of section 794.011(5), however, cannot be sustained....

...That same rationale should be applied to sexual battery offenses where only one sexual battery occurs. Accordingly, appellant should not have been convicted and sentenced on the charge of sexual battery by force and violence not likely to cause serious personal injury in violation of section 794.011(5)....

...as to those convictions only. In Case No. 89-3257-CF, appellant was convicted of three counts of sexual battery by use of, or threats to use, a deadly weapon or by actual use of physical force likely to cause serious personal injury, in violation of section 794.011(3), Florida Statutes (1987); armed burglary, with an assault, in violation of section 810.02(2)(a) and (b), Florida Statutes (1987); and kidnapping, in violation of section 787.01(2), Florida Statutes (1987)....

...abitual offender statute. Burdick v. State, 594 So.2d 267 (Fla. 1992). Accordingly, insofar as the burglary and kidnapping convictions are concerned, appellant's first argument lacks merit. The three sexual battery convictions are all life felonies. § 794.011(3), Fla....

...ause of action against Mr. Miller because he was fifteen years old at the time the child was conceived. We reverse because there is no legal authority in Florida to support this ruling. In dismissing the paternity action, the trial court relied upon section 794.011(8)(b), Florida Statutes (1995)....

...available if the father's financial status improves in the future. The rights of the child cannot be permanently foreclosed because his father was a minor at the time of conception. REVERSED and REMANDED. DAUKSCH and GRIFFIN, JJ., concur. NOTES [1] Section 794.011 defines the crime of sexual battery as follows: 794.011 Sexual battery.— * * * * * * (8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than...

...ith that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 794.011(8)(b), Fla.Stat....

...Appellant also notes for the first time on appeal an error in the written judgment adjudicating him guilty of these offenses. The written judgment in this case adjudicates appellant guilty of the crime of sexual battery without a deadly weapon, but refers to section 794.011(3), Florida Statutes, which defines the crime of sexual battery with a deadly weapon....

...the evidence presented at trial and of which the jury did not find him guilty. We find that such a discrepancy constitutes fundamental error which can be raised for the first time on appeal. On remand, the trial court should replace the reference to section 794.011(3), Florida Statutes (1995), in the judgment with the correct statutory reference to section 794.011(5), Florida Statutes (1995)....

...nt to permit Mr. Luedtke to withdraw his guilty plea prior to sentencing. We accordingly reverse and remand for further proceedings. In February 2006, the State filed an amended information charging Mr. Luedtke with one count of sexual battery under section 794.011(5), Florida Statutes (2004)....

...It is well settled that affirmative misadvice regarding collateral consequences of a plea forms a basis for allowing a defendant to withdraw the plea. Id. at 11. Section 394.912(9)(d), Florida Statutes (2004), of the Jimmy Ryce Act defines "sexually violent offense" as including a "[s]exual battery in violation of s. 794.011." Under the Act, a person is subject to civil commitment proceedings if he or she has been convicted of a sexually violent offense and is sentenced to total confinement after the effective date of the Act, January 1, 1999....

...Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. WALLACE, Judge. Edward Leon Daniels appeals his judgment and life sentence for committing a sexual battery on a child less than twelve years of age, a violation of section 794.011(2), Florida Statutes (2005 and 2006)....

...The second reason I would affirm is that the trial judge's order comes to this court presumed to be correct. [1] The judge having conducted the hearing, having evaluated the witnesses, and having prepared an extensive order with findings of fact, I would affirm. NOTES [1] § 794.011(2), Fla....

...Upon her release, she immediately went to the police who took a statement from her and had her submit to a medical examination which discovered the presence of sperm and pubic hairs matching those of the appellant. The trial court, in accordance with Section 794.011(3), Florida Statutes (1975), instructed the jury as follows: "A person who commits sexual battery upon a person over the age of 11 years, without that person's consent; in the process thereof uses or threatens to use a deadly weapon o...

...hall be guilty of a violation of the Florida Criminal Law." The court refused appellant's requested instructions on attempted involuntary sexual battery, Section 777.04, Florida Statutes (1975); the first degree felony of involuntary sexual battery, Section 794.011(4)(b), Florida Statutes (1975); the second degree felony of involuntary sexual battery, Section 794.011(5), Florida Statutes (1975); and assault and battery....

...instructed. Notwithstanding, we feel the Supreme Court has impliedly overruled its decision in DeLaine, supra, by its decision in Lomax, supra, and we are bound by the latter. This court has previously held that the first degree felony offense under Section 794.011(4)(b), Florida Statutes (1975), and the second degree felony offense under Section 794.011(5), Florida Statutes (1975) are "category four" lesser included offenses of Section 794.011(3), Florida Statutes (1975)....

...The State charged that Jackie Williams committed sexual battery on a person twelve years of age or older but less than sixteen years of age and that he used or threatened to use a deadly weapon or used actual physical force likely to cause serious personal injury. § 794.011(3), Fla....

...capital sexual battery). But the reasoning in this line of cases was based on specific language in previous versions of the law defining lewd and lascivious crimes which stated: "A person who. . . (3)[c]ommits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years ....

...tion, or any other act involving sexual activity commits lewd or lascivious battery, a felony of the second degree . . . . The Welsh court noted that these 1999 amendments, which were not at issue in Welsh's trial, eliminated "the cross-reference to section 794.011(1)(h) and the language `without committing the crime of sexual battery.'" The court expressed no opinion about the effect of these statutory changes on the issue of whether section 800.04 crimes could be lesser included offenses of sexual battery....

...us crime, so it no longer fails the first of the Brown tests as a matter of law. In fact, the present definition of "sexual activity" for purposes of section 800.04 crimes is virtually identical to the definition of "sexual battery" for crimes under section 794.011, indicating that both are intended to prohibit the same basic conduct. Compare § 800.04(1)(a), Fla. Stat. (2002), with § 794.011(1)(h), Fla....

...For this reason, we certify that our decision in this case passes on the following question of great public importance: [4] MAY THE CRIME OF LEWD OR LASCIVIOUS BATTERY PROHIBITED BY SECTION 800.04(4), FLORIDA STATUTES (2002), BE A PERMISSIVE LESSER INCLUDED OFFENSE OF THE CRIME OF SEXUAL BATTERY CHARGED PURSUANT TO SECTION 794.011(3), FLORIDA STATUTES (2002)? Affirmed; question certified....

assault (section 784.021) and sexual battery (section 794.011). Each offense requires proof of an element

...He now complains that the sentences were illegal for the two crimes: (1) kidnaping, a life felony pursuant to section 787.01(2), Florida Statutes (1989) and enhanced by section 775.087(1) for the use of a weapon; and (2) armed sexual battery pursuant to section 794.011(3), Florida Statutes (1989)....

...ry or death, by a person against any other person. But the trial court concluded that, because she was not yet eighteen, Jaquinta lacked legal capacity to consent so that, as a legal matter, Denea had been sexually battering Jaquinta in violation of section 794.011(5), Florida Statutes (2007), and issued the injunction on that basis. [1] We review the trial court's legal conclusions de novo. See Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla. 2002). Section 794.011(5), Florida Statutes (2007), provides that "[a] person who commits sexual battery upon a person 12 years *671 of age or older, without that person's consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree...." Unlike subsections (2)(a) and (b) of section 794.011, which prohibit sexual battery upon a child under age twelve and make no reference to consent, [2] subpart (5) requires proof that the victim did not consent to the sexual activity. See Corner v. State, 868 So.2d 553, 557 (Fla. 3d DCA 2004) (observing that a "standard sexual assault case under § 794.011(5) ... generally hinges on whether or not the victim consented"); McIlwain v. State, 402 So.2d 1194, 1197 (Fla. 5th DCA 1981) (affirming conviction under section 794.011(4), Florida Statutes (1977), on grounds 17-year-old victim had not consented). See also Soukup v. State, 760 So.2d 1072, 1074 (Fla. 5th DCA 2000) (declining to order entry of judgment under section 794.011(5) where state failed to prove 16-year-old victim did not consent). As far as the record reveals, Jaquinta knowingly and voluntarily consented to the relationship with Denea. See § 794.011(1)(a), Fla....

...requires proof by the State . . . that the [17-year-old] victim did not consent to the battery." McIlwain v. State, 402 So.2d 1194, 1196 (Fla. 5th DCA 1981). See also Soukup v. State, 760 So.2d 1072, 1074 (Fla. 5th DCA 2000) (declining to order entry of judgment under section 794.011(5) where state failed to prove 16-year-old victim did not consent). Our supreme court has left little doubt as to its views on whether 16- or 17-year-olds have the capacity to consent to sexual intercourse, stating in a case earlier this year: Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of incapacity to consent ends at age eleven....

...This "twelve or older" formulation represents a change from the view expressed in Schmitt v. State, 590 So.2d 404, 411 n. 10 (Fla.1991): "Obviously, [unmarried] minor children are legally incapable of consenting to a sexual act in most circumstances." [2] The absence of any reference to consent in sections 794.011(2)(a) and (2)(b), Florida Statutes (2007), does not eliminate lack of consent as an element of the offense of sexual battery upon a child under twelve, but reflects an irrebuttable presumption that children under twelve cannot consent....

...For the following reasons, we quash the decision of the Fifth District in Gutierrez and remand for a new trial.  BACKGROUND AND FACTS Rafael Alexander Gutierrez was found guilty by a jury of sexual battery in violation of section 794.011(5), Florida Statutes (2010)....

...credibility of the victim’s testimony. Because defense counsel had argued in her opening statement that there was a lack of corroboration of the alleged crime, and because section 794.022(1), Florida Statutes (2012), provided that in a prosecution under section 794.011, the testimony of an alleged sexual battery victim “need not be corroborated,” the trial court gave the instruction as part of the standard instruction on weighing the evidence. The question presented in the district cour...

...at 1131. ANALYSIS The trial court in this case agreed to give the “no corroboration” instruction, in part, because section 794.022(1) stated that the testimony of the victim need not be corroborated in a prosecution under section 794.011, Florida Statutes....

...ed in 1974 as part of legislation eliminating the crime of “rape” and replacing it with the offense of “sexual battery.” 11 So. 3d at 434; see also ch. 74-121, §§ 1, 2, at 372, Laws of Fla. (repealing § 794.01, Fla. Stat., and creating § 794.011, Fla....