Florida/Georgia Personal Injury & Workers Compensation

...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). Chapter 800 covered "unnatural and lascivious act" (section 800.02), exposure of sexual organ (section 800.03), and "lewd, lascivious, or indecent assault or act upon or in the presence of a child" (section 800.04)....

...State, 397 So.2d 1120 (Fla. 1981). The evidence was sufficient to support Holton's sexual battery conviction. 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)....

...age, violating constitutional due process to the defendants. We anticipate and recommend legislative study of the subject and, pending further legislation in the matter, society will continue to be protected from this sort of reprehensible act under Section 800.02, Florida Statutes, F.S.A., which provides: "Unnatural and lascivious act. Whoever commits any unnatural and lascivious act with another person shall be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding six months." Under the evidence in this case, the conduct denounced in Section 800.02, Florida Statutes, F.S.A., is a lesser included offense....

...Accordingly we must, without any criticism of the able trial jurist who was following the decisions then existing, reverse the two judgments adjudging the defendants of being guilty of a felony and remand the causes to the trial court with directions to enter a judgment of guilty of Section 800.02 which is a misdemeanor, and to impose sentence accordingly....

...[17] Note 13, supra. [18] We had the subject before us more recently in Witherspoon v. State, 278 So.2d 611 (Fla. 1973), wherein we directly upheld 6-1 the sufficiency of the statutory words "unnatural and lascivious" acts with another person under Fla. Stat. § 800.02, F.S.A., to be sufficient "notice" of the acts proscribed to be secure from a constitutional attack for vagueness....

...State's Atty., for appellee. ROBERTS, Justice. This cause has been transferred to us by the Circuit Court, Fifteenth Judicial Circuit *389 in and for Palm Beach County, it appearing that the trial judge directly ruled on the constitutionality of Sections 828.21, 800.02, and 796.07, Florida Statutes, F.S.A., thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution, F.S.A....

...On January 19, 1973, appellant was charged by information with two counts of causing a minor under 18 to become a delinquent or dependent child, two counts of unnatural and lascivious acts, and four counts of assignation contrary to Sections 828.21, 800.02, and 796.07, Florida Statutes, F.S.A....

...Sub judice appellant was charged in count 1 with violation of this act in that he: "... did commit sodomy and/or any lewd, unnatural or lascivious act with ... aged fifteen, by placing his penis in the rectum of... ." This conduct is clearly proscribed by Sections 828.21 and 800.02, Florida Statutes, F.S.A....

...State, supra, wherein we upheld the constitutionality of Section 828.19, Florida Statutes, F.S.A., which are equally applicable to the question of constitutionality of Section 828.21, we hold that Section 828.21 is constitutional. Relative to the constitutionality vel non of Section 800.02 which provides: "Whoever commits any unnatural and lascivious act with another person shall *390 be guilty of a misdemeanor of the second degree." we adhere to our recent decision in Witherspoon v. State; Little v. State, 278 So.2d 611 (Fla. 1973), wherein we upheld the constitutionality of Section 800.02 against an attack of vagueness and overbreadth and stated: "Thus, we reaffirm our holding in Chesebrough v....

...i, Florida Appellate Rules, 32 F.S.A., see Redditt v. State of Florida, 84 So.2d 317 (Fla. 1955). The record before us supports a finding that the plea was voluntarily and knowingly made and that the trial court properly accepted the plea as such. Accordingly, we hold Section 828.21, 800.02 and 796.07, Florida Statutes, F.S.A., to be constitutional and affirm the judgment of the trial court....

Montague v. State, 17 Fla. 662; 1 Bish.New Cr.Law, § 800; 2 Bish.Cr. Proc. § 3." From the foregoing decision

...See also State v. Magee, 259 So.2d 139 (Fla. 1972), where the facts also encompassed all, or at least some, of the elements of: Section 798.02, Florida Statutes, F.S.A., Lewd and Lascivious behavior; Section 798.03, Florida Statutes, F.S.A., Fornication; Section 800.02, Florida Statutes, F.S.A., Unnatural and Lascivious Acts; and, Section 800.03, Florida Statutes, F.S.A., Exposure of sexual organs....

...Atty. Gen., for appellee. ROBERTS, Justice. Having been transferred by the District Court of Appeal, Third District, this cause is before us on direct appeal from an order of the Circuit Court in and for Dade County upholding the constitutionality of Section 800.02, Florida Statutes, thus vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution (1973)....

...*414 Appellant was charged by indictment with the crimes of extortion, assault and battery, conspiracy to commit an unnatural and lascivious act and committing an unnatural and lascivious act. The trial court denied appellant's motion to dismiss the indictment which was based on the ground that Section 800.02, Florida Statutes, is unconstitutional, thereby upholding the validity of said statute....

...He was found guilty of the crimes charged and was adjudicated guilty by the trial court and sentenced to a term of six months to three years in the state prison. Appellant contends that his right to a fair and impartial trial was violated by closing remarks of the prosecuting attorney, that Section 800.02, Florida Statutes, is unconstitutionally vague and indefinite, and that the acts for which he was convicted do not constitute a violation of Section 800.02, Florida Statutes, and, therefore, the conviction should be reversed....

...The trial judge sustained the objections to both comments and specifically asked the jury to disregard the second comment. He acted properly within his discretion in not declaring a mistrial. Appellant next argues that the trial court erred in denying his motion to dismiss the indictment on the ground that Section 800.02, Florida Statutes, is unconstitutionally vague and indefinite because the language unnatural and lascivious is not sufficiently explicit as to define what conduct is prohibited. We adhere to recent decisions of this Court holding that the words "unnatural and lascivious" as used in Section 800.02, Florida Statutes, are not void for vagueness and that these words are of such a character that an ordinary citizen can easily determine what character or act is intended; and we are by no means persuaded that the position *416 taken in these cases and the reasoning upon which it was based are no longer valid....

...Cf. Chesebrough v. State, 255 So.2d 675 (Fla. 1971). See also: Murray v. State, 384 F. Supp. 574 (S.D.Fla. 1974). Further, we find that the act of forced oral copulation, sub judice constitutes an unnatural and lascivious act within the meaning of Section 800.02, Florida Statutes....

...State, 257 So.2d 21 (Fla. 1971), the District Court of Appeal, Second District, in Morris v. State, 261 So.2d 563 (Fla.App. 1972), opined: "At this point, however, we interpose that the supreme court in Franklin and Joyce, supra, considered that F.S. § 800.02, F.S.A., which condemns as a misdemeanor any `unnatural and lascivious act with another person,' is constitutional....

...on law offense of copulation per anus, formerly thought condemned by the now voided F.S. § 800.01, F.S.A., but it is more than sufficient to support a finding of guilty to the unnatural and lascivious act now clearly and certainly condemned by F.S. § 800.02, F.S.A....

...Additionally, the defendant requested, and received a jury instruction of such lesser offense at trial." In summary, we find that the prosecutorial closing remarks, objections to which were sustained by the trial court, do not warrant reversal of the convictions and a new trial, that Section 800.02, Florida Statutes, is constitutional, and that the acts committed by appellant fall within the language of Section 800.02, Florida Statutes....

...ENGLAND, J., dissents with an opinion with which ALDERMAN, Circuit Judge, concurs. ALDERMAN, Circuit Judge, concurs in part and dissents in part with an opinion. ENGLAND, Justice (dissenting). I respectfully dissent from that portion of the majority opinion which holds Section 800.02 to be constitutional....

...Testimony elicited at appellant's trial showed that one Carol Sue Hall engaged in oral copulation with appellant and other police officer witnesses. The evidence was contradictory as to whether this activity was voluntary or was performed through defendant's coercion of Miss Hall. Section 800.02, Fla. Stat. provides: "Whoever commits any unnatural and lascivious act with another person shall be guilty of a misdemeanor of the second degree... ." This Court recently held that the words "unnatural and lascivious", as used in Section 800.02, were not void for vagueness....

..., which we found fatally vague in Franklin v. State, 257 So.2d 21 (Fla. 1971). That same argument was expressly rejected in Witherspoon . [1] Nonetheless, I believe there exist compelling reasons to overrule Witherspoon and Fasano , and to hold that Section 800.02 is unconstitutional on its face....

...[3] There has been no substantive change in this criminal sex offense law since 1971, and the question of its constitutional clarity has again been brought to us for review. I believe the time has come to relax the restraint which the Court exercised with respect to this law in Franklin , and to test Section 800.02 against the Franklin standards which we applied to Section 800.01. Section 800.02 was enacted in 1917, and has remained unchanged in its description of the proscribed conduct since passage. The changes in society's experiences, expressions and understanding as to sex activities and offenses have changed as dramatically in 58 years as they have in 100 years. [4] For the purpose of analyzing this *418 law against present day morality, Section 800.02's reference to "unnatural" acts can be juxtaposed against the infirmity found in Section 800.01's reference to crimes "against nature"....

...[6] Second, if the legislature concludes that modern society requires additional laws directed at specific sex offenses not already proscribed, [7] it is always free to outlaw such objectionable conduct in understandable language of the day. [8] Third, although a possible 60-day jail sentence under Section 800.02 is obviously not as severe as a possible 20-year jail sentence under the law invalidated in Franklin , incarceration for even that lesser period will be no less devastating to one who thought, before his arrest, charge and conviction, that our enlightened society considered his conduct "natural". For these reasons, I would hold that Section 800.02 is invalid on its face....

...ALDERMAN, JAMES E., Circuit Judge (concurring in part and dissenting in part): I agree with that part of the majority opinion by Justice Roberts which holds that the prosecutor's closing remarks did not warrant reversal of the conviction and a new trial. However, I believe Section 800.02 to be unconstitutional on its face, and I concur with the dissenting opinion by Justice England on this issue. NOTES [1] Prior to Witherspoon , Section 800.02 was impliedly upheld in Franklin and in Parisi v. State, 265 So.2d 699 (Fla. 1972). [2] 257 So.2d at 22. [3] 257 So.2d at 24. Violations of Section 800.01 constituted a second degree felony, whereas violations of Section 800.02 constititute a second degree misdemeanor....

...due process. Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla. 1991). I find reason to question this statute under due process. Today, HRS essentially makes a single contention supporting its case: that homosexual acts violate section 800.02, Florida *904 Statutes (1991), [1] and that this fact is sufficient in itself to justify the gay exclusion statute....

...Yet, in oral argument November 4, 1994, HRS conceded that it does not question heterosexuals about sexual conduct unless something during the background investigation raises a question about improprieties. I find this a puzzling concession because section 800.02 by its own terms is not limited to homosexuals, nor does it exclude heterosexuals....

...That being the case, doubt exists as to whether HRS actually is applying the definition it says it has developed in a way that comports with due process. Again, this raises a valid issue that should be explored on remand. Yet another due process issue exists. I find that HRS's construction of section 800.02 is not supported by the case law....

...e statute only to acts involving public indecency, public sexual acts, or nonconsensual sexual assaults, including assaults on persons legally incapable of consenting. There is no Florida case holding that private, nonharmful consensual acts violate section 800.02. In Franklin v. State, 257 So.2d 21 (Fla. 1971), this Court overturned the statute outlawing "the abominable and detestable crime against nature," but we expressly allowed the defendant to be separately convicted under section 800.02. However, Franklin dealt with two persons having sexual relations in a public place described as a "fill area." Id. at 24. In addressing the applicability of section 800.02, Franklin was quite modest: It stated only that section 800.02 would apply "[u]nder the evidence in this case." Id....

...1572, 118 L.Ed.2d 216 (1992), this Court held that harmless and discreet acts are never "lascivious" merely because they are unorthodox. Rather, acts are lascivious only if they substantially intrude upon the rights of third parties. Id. at 410. Because section 800.02 includes a mandatory "lasciviousness" element, *905 serious doubt remains as to whether any private and nonharmful conduct between two consenting adults can ever fall within the statute's scope. Schmitt, in other words, undermines HRS's definition of "homosexuality" by indicating that section 800.02 was not intended to apply to purely private consensual acts, and has never been so applied....

...The earlier sodomy conviction apparently had involved private oral sex between a man and a woman. In Mohammed, Judge Zehmer examined both legal and sociological principles relevant to the statute's interpretation. His discussion was the first to note that section 800.02 most probably was limited solely to nonprivate or nonconsensual acts. Id. at 387. More importantly, the Mohammed court concluded that section 800.02 does not apply to "the consensual acts between a man and a woman in the privacy of their bedroom." Id.; accord Schmitt. Thus, the Georgia sodomy conviction had no Florida equivalent and could not be used to enhance the penalty for the Florida conviction. Because the language of section 800.02 neither exempts heterosexuals nor applies exclusively to homosexuals, the Mohammed opinion necessarily implies that private consensual acts by homosexuals also would not fall within section 800.02. Any other reading would fly in the face of the statute's plain language, which makes no exception for any particular sexual orientation. Thus, a valid issue exists in this case as to whether HRS's construction of section 800.02 is contrary to law and thus a violation of due process....

...felons and child abusers. Before the State can deny due process in this manner, it must at least advance a legitimate reason for doing so based in fact and empirical study. Here, HRS has advanced no such reason, merely a questionable assertion that section 800.02 justifies the exclusion....

...Because the Court is remanding for a new proceeding, the district court at least should reconcile this case with Matthews. For these reasons, I would remand for reconsideration of the various due process issues that exist. ANSTEAD, J., concurs. NOTES [1] Section 800.02, Florida Statutes (1991), states: Whoever commits any unnatural and lascivious act with another person shall be guilty of a misdemeanor of the second degree, punishable as provided in s....

...[3] Some cases on the statute provide no facts, so it is impossible to tell what the exact precedent is. E.g., State v. Fasano, 284 So.2d 683 (Fla. 1973); Witherspoon v. State, 278 So.2d 611 (Fla. 1973). At least one dissenting Justice of the Florida Supreme Court has espoused HRS's view of section 800.02, Florida Board of Bar Examiners Re N.R.S., 403 So.2d 1315, 1317 (Fla....

...us acts statute. Ephraim v. State, 82 Fla. 93, 89 So. 344 (1921). However, Ephraim is of doubtful validity today, because the Florida courts seem to have accepted the concept that nonprivate or nonconsensual "unnatural acts" fall within the scope of section 800.02. Franklin v. State, 257 So.2d 21 (Fla. 1971) (section 800.02 reaches certain sexual acts in public place).

...Robert L. Shevin, Atty. Gen., and Raymond L. Marky and Frank Gomez, Asst. Attys. Gen., for appellee. ROBERTS, Justice. This cause is before us on direct appeal to review judgments of the trial court impliedly upholding the constitutional validity of Section 800.02, Florida Statutes....

...nd lascivious act and committing an unnatural and lascivious act. Johnsen was charged with assault and battery and conspiracy to commit an unnatural and lascivious act. Thomas and appellants jointly filed a motion to dismiss based on the ground that Section 800.02, Florida Statutes, is unconstitutional....

...e to be suspended, and to two years probation. Johnsen was adjudicated guilty and sentenced to sixty days in the county stockade with the final 30 days thereof to be suspended upon serving of 30 days and to two years probation. Appellants argue that Section 800.02, Florida Statutes, is unconstitutionally vague and indefinite and that the acts for which they were convicted under counts 3 and 4 of the indictment are not a violation of Section 800.02, Florida Statutes, and that, therefore, the conviction should be reversed....

...e same issues on appeal of his judgment of guilt to this Court in Thomas v. State, 326 So.2d 413 (Fla. 1975), Case No. 46,416, filed December 3, 1975, Rehearing denied February 17, 1976, wherein we affirmed the judgment of the trial court, held that Section 800.02, Florida Statutes, is constitutional, and held that the acts committed by Thomas as charged in the indictment did constitute a violation of Section 800.02, Florida Statutes....

...ENGLAND, J., dissents with an opinion. ENGLAND, Justice (dissenting). I respectfully dissent. As the majority notes, appellants were charged in the same indictment as Frank Douglas Thomas and joined with him in the same motion to dismiss the charges based on the invalidity of Section 800.02, Florida Statutes (1973)....

...In contrast, other people maintain that homosexual activity is severable from homosexual thought. They believe that homosexual conduct should be regulated by the state. As a result, some types of homosexual conduct have long been the subject of criminal statutes. See § 800.02, Fla....

...Public Defender, for appellants. Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee. *612 ADKINS, Justice. This is a direct appeal from the Metropolitan Court for Dade County which passed on the validity of Fla. Stat. § 800.02, F.S.A....

...State, 257 So.2d 21 (Fla. 1971), the words "abominable and detestable crime against nature" in Fla. Stat. § 800.01, F.S.A., were held to be fatally vague. However, in so ruling, we approved the language of the statute here under review, Fla. Stat. § 800.02, F.S.A., by ordering the defendants in Franklin v....

...Applicant admits he is a homosexual. Before a finding on the issue of his fitness to practice law I would remand this cause to the Board of Bar Examiners for an inquiry into whether he has committed homosexual acts of the kind criminally outlawed by Section 800.02, Florida Statutes....

...186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). The state's brief does not direct us to any Florida statute that is directly comparable to the Georgia statute; however, the state argues that the Georgia statute "appears most analogous to Florida Statutes, section 800.02 (1987)." (State's brief, p. 16). Section 800.02 provides that "whoever commits any unnatural and lascivious act with another person shall be guilty of a misdemeanor of the second degree......

...ual impurity; tending to deprave the morals in respect to sexual relations; licentious; "conduct which is wanton, lewd, and lustful, and tending to produce voluptuous or lewd emotions." Black's Law Dictionary, verba lascivious at 794 (5th ed. 1979). Section 800.02 does not define a criminal offense with the specificity found in the *386 Georgia statute, and the definitions of the general terms used in section 800.02 are so broad and subjective that they could be said to cover a multitude of diverse conduct depending primarily on a particular person's moral convictions....

...2841, 92 L.Ed.2d 140 (1986); Franklin v. State, 257 So.2d 21 (Fla. 1971). In view of the widely published data on private sexual practices in the United States in respect to consensual oral sex, [1] we are disinclined to conclude that the general, nonspecific language in section 800.02 (especially in comparison with the specific language of the Georgia statute) is sufficiently precise to define as criminal conduct consensual oral sex or fellatio performed by a man and a woman in the privacy of their bedroom, which was the basis of the Georgia charge against appellant in this case....

...d experiences are different than they were even a decade ago" (257 So.2d at 23), has most assuredly continued apace at an accelerated rate since 1971, when Franklin was decided, and similarly cautions today against applying the imprecise language of section 800.02 to make a criminal offense out of the facts involved in the Georgia prosecution against appellant. We are aware that in Franklin the court applied the language of section 800.02 (prohibiting "unnatural and lascivious acts") to the consensual homosexual acts being engaged in by the two male defendants in an automobile parked on a fill area, where the policeman walked up to the car and observed their conduct, and upheld their conviction under section 800.02 as a lesser included offense of the charge brought under the invalid section 800.01; but those homosexual acts were being performed in a vehicle in a nonprivate place that was open to public inspection or view, and thus could be reasonably characterized as unnatural and lascivious conduct for this reason. The facts in Franklin are sufficiently distinguishable from the consensual acts between a man and a woman in the privacy of their bedroom that the instant case should not be governed by the construction and application of section 800.02 in Franklin. [2] This conclusion is reinforced by the obvious lack of prosecutions in Florida under section 800.02 to punish either heterosexual or homosexual activities that would violate the specific language of the Georgia statute....

...the legal constraint was based upon the commission of an act that was not criminal under the laws of Florida. He further argues that even if the state's argument were accepted and consensual oral sex were treated as a second degree misdemeanor under section 800.02 authorizing only 6 months' probation, it is fundamentally unfair to add 36 points for legal constraint where the appellant had already served 5 years of the probation, that is, a term well in excess of the maximum term allowable under the Florida statute....

...Eighty-seven percent of wives in the Redbook survey reported using cunnilingus often or occasionally, and 85 percent reported fellatio with a similar frequency (Tavris and Sadd, 1977). W. Masters and V. Johnson, Human Sexuality 392 (2d ed. 1985). [2] Section 800.02 has vagueness problems similar to section 800.01 in its use of the term "unnatural." After section 800.01, Florida Statute (1973), prohibiting the "crime against nature," was held unconstitutional, it was repealed by s....

...Appellant, Cowboy Sherrer, was convicted of lewd and lascivious molestation pursuant to section 800.04(5), Florida Statutes (2002). He contends on appeal that (I) the trial court erred by refusing to give a jury instruction on the lesser-included offense of unnatural and lascivious act, pursuant to section 800.02, Florida Statutes (2002), and (II) trial counsel provided ineffective assistance on the face of the record by failing to object to the testimony of the child victim's mother on the basis of hearsay under section 90.803(23), Florida Statutes (2002)....

...(Crim.) Schedule of Lesser Included Offenses § 800.04 (July 1998). The state claims this authority is no longer applicable, because section 800.04 was significantly amended in 1999, and is intended to encompass virtually all sexual crimes against children aside from sexual battery, and thus section 800.02 should not apply when the victim is a child. This argument has no support in the text of the statutes. Section 800.04 addressed sex acts against children before 1999 and the courts still concluded that section 800.02 was a lesser-included offense of section 800.04. The information against Sherrer and the proof against him charged and proved a violation of section 800.02, and thus the trial court erred in failing to give the requested instruction....

...That's sodomy per os, and lest we be held guilty of vagueness and overbreadth condemned by the Franklin court, it means that he forcibly penetrated her mouth with his penis. Following Parisi's reversal and remand for sentencing as a misdemeanant under Section 800.02, Florida Statutes, it became apparent that citizens of this State were no longer protected from deviant forcible sexual assaults by the only felony statute theretofore generally invoked for that purpose....

...s a felony under Section 800.01, Florida Statutes, F.S.A., under which they were charged. Following the Supreme Court's decision in Franklin, the only avenue remaining at first blush is to reverse and remand these two appellants for sentencing under Section 800.02, Florida Statutes, F.S.A., which solemnly declares that the act of appellants in the case at bar is a misdemeanor of the second degree punishable by not more than sixty days in the county jail under Section 775.082(3)(b)....

...Specifically, Count I alleged that Appellant's penis penetrated or had union with the vagina of the minor victim. During the charge conference, Appellant asked the court to read two category two lesser instructions to the jury, one on an unnatural and lascivious act, as proscribed by section 800.02, Florida Statutes (1997), and battery....

...And an unnatural and lascivious act, which I define as sodomy, basically can be a lesser included. In fact, it has been charged in Counts 2, 3 and 4, so for that reason in Count 2, 3 and 4, I will give unnatural and lascivious act. Count I, however, charges sexual intercourse, and that is not something that's prohibited by 800.02, so it doesn't fall within the definition of an unnatural and lascivious act....

...of category 2 crimes may have been alleged and proved.'" Williams v. State, 627 So.2d 1279, 1280 (Fla. 1st DCA 1993). Count I of the information alleged that Appellant's penis had penetrated or had sexual union with the vagina of A.C. The history of section 800.02, which proscribes "unnatural and lascivious acts" indicates that it has been applied to homosexual acts, bestiality, digital sex, and oral sex—anything other than adult male and female sexual intercourse....

...1st DCA 1990). The term "unnatural" is defined generally as "violating natural law; inconsistent with an individual pattern or custom; deviating from a behavioral, ethical, or social norm." Mohammed v. State, 561 So.2d 384, 385. The jury instructions for section 800.02 define "unnatural" as "not in accordance with nature or with normal feelings or behavior." If we were to interpret the statutes as Appellant would have us interpret them, there would be no need for section 800.02 because it would be subsumed within section 800.04. Since we must interpret statutes so as to give a logical and orderly meaning to all sections, we must conclude that the legislature intended for section 800.02 to be applied to different factual situations than would fall under section 800.04. The term "unnatural" in 800.02 distinguishes 800.02 from 800.04, and implies something more than what is covered by 800.04....

...Over defense objection, Detective Coxen was allowed to tell the jury that he was convinced K.S. knew the difference between the truth and a lie. At the charge conference the trial court denied Williams' request for instructions on two lesser included offenses, unnatural and lascivious act, section 800.02, Florida Statutes, and exposure of sexual organs, section 800.03, Florida Statutes....

...1986), quoting, Fla.Std. Jury Instr. (Crim.) Notes (2d ed.). *1281 In the instant case, the trial court conducted no such analysis. Instead, the trial court denied the requested instruction, reasoning that section 800.04 [3] addresses and includes section 800.02 [4] ....

...crime of sexual battery, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section. [4] Section 800.02 provides: Whoever commits any unnatural and lascivious act with another person shall be guilty of a misdemeanor of the second degree, punishable as provided in s....

...We affirm the conviction and sentence for sexual battery. The crime of lewd assault is proscribed by section 800.04(1), Florida Statutes (1991). In its instructions to the jury the trial court, instead of the instructions for lewd assault, read the instruction for an unnatural and lascivious act under section 800.02, Florida Statutes (1991)....

...1969, F.S.A., which made it a felony to commit "the abominable and detestable crime against nature," was prospectively void and unconstitutional because of vagueness and uncertainty — a legal criteria which seems to be growing in popularity. The Franklin opinion went on to suggest that Section 800.02, F.S....

...Without attempting *854 a comprehensive generic or specific catalog, fellatio, sodomy, sexual acts which prior to Franklin were denominated as abominable and detestable crimes against nature with mankind or beast, or lascivious or unnatural sex acts can now, at best, be only misdemeanors under Section 800.02, F.S....

...00.03, Fla. Stat. (1993). The legislature included the breastfeeding exception elsewhere in Florida's criminal code, thereby implying that the breast can be considered the subject of lewd behavior when used for purposes other than breastfeeding. See § 800.02, Fla....

...[5] Accordingly, we are bound by the chains of stare decisis and must hold that the judgment and sentence imposed under F.S. § 800.01, F.S.A., should be set aside. At this point, however, we interpose that the supreme court in Franklin and Joyce, supra, considered that F.S. § 800.02, F.S.A., which condemns as a misdemeanor any "unnatural and lascivious act with another person," is constitutional....

...on law offense of copulation per anus, formerly thought condemned by the now voided F.S. § 800.01, F.S.A., but it is more than sufficient to support a finding of guilty to the unnatural and lascivious act now clearly and certainly condemned by F.S. § 800.02, F.S.A....

...Additionally, the defendant requested, and received a jury instruction of such lesser offense at trial. In view of the foregoing, therefore, we obediently reverse the judgment entered under F.S. § 800.01, F.S.A., and remand the cause with directions to enter a judgment of guilty under F.S. § 800.02, F.S.A....

...unlawfully and carnally knows and abuses a child under the age of 11 years, shall be guilty of a life felony... ." The 1969 and 1971 statutes also included Chapter 800, which prohibited crimes against nature (section 800.01), unnatural and lascivious acts (section 800.02), and lewd and lascivious or indecent assault or acts on or in the presence of a child (section 800.04)....

...hallenged the constitutionality of section 800.01. The supreme court found section 800.01 to be unconstitutionally void on its face for vagueness, and reversed and remanded for the defendant to be adjudicated guilty of the lesser-included offense of section 800.02. In so doing, the court stated: "We anticipate and recommend legislative study of the subject and, pending further legislation in the matter, society will continue to be protected from this sort of reprehensible act under Section 800.02 [prohibiting unnatural and lascivious acts]." Franklin v....

...Several months after Franklin, the supreme court reversed the conviction of a defendant found guilty under section 800.01 for committing oral copulation upon a female victim. As in Franklin, the supreme court reversed the conviction and remanded with directions to adjudicate the defendant guilty of violating section 800.02 — a misdemeanor — based on the unconstitutionality of section 800.01....

...The court recognized that it could not affirm defendant's conviction because of the *336 Franklin and Parisi decisions, and noted that the Legislature had not yet rewritten the now unconstitutional section 800.01. As a result, the conduct committed by the defendant could only be punished as a misdemeanor under section 800.02....

...Therefore, until the release of the Franklin decision on December 17, 1971, the conduct committed by appellant McGahee in the instant case was punishable under section 800.01 as a crime against nature. After Franklin, the conduct became punishable under the lesser-included offense of section 800.02....

...anguage appearing in Brinson in 1973 and later approved in Washington. Until that time, the act committed by the appellant in the instant case was punishable either as a felony under section 800.01 or, after December 17, 1971, as a misdemeanor under section 800.02....

...er 12, 1973 by the Criminal Court of Record in and for Palm Beach County, Florida. These sentences were imposed after a plea of nolo contendere to two counts of committing an unnatural and lascivious act with another person in violation of Fla.Stat. § 800.02 (1973), and one count of causing a minor under eighteen to become a delinquent or dependent child in violation of Fla.Stat....

...entered freely and voluntarily. Petitioner's final contention is that the Florida Statutes involved are constitutionally infirm for reasons of vagueness and overbreadth. He specifically attacks the phrase "unnatural and lascivious act" in Fla.Stat. § 800.02 (1973), and the phrase "any act which causes or tends to cause or encourage any person under the age of eighteen years to become a delinquent or dependent child" in Fla.Stat....

...n may know which acts it is his duty to avoid. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). The Florida Supreme Court has recently examined Fla.Stat. § 800.02 (1973) and held that it is not void for vagueness....

...Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellant. John D. Demmi, Tampa, for appellees. McCAIN, Justice. This is a direct appeal from an order of the County Court in and for Hillsborough County which passed upon the validity of Fla. Stat. § 800.02, F.S.A. (1971). We have jurisdiction pursuant to Art. V, § 3(b)(1), Florida Constitution, F.S.A. The appellees were charged by a direct information with having committed an unnatural and lascivious act in violation of Fla. Stat. § 800.02, F.S.A....

...Stat.); Bell v. State, 289 So.2d 388 (Fla. 1973) (as to Section 796.07, Fla. Stat.); Thomas v. State, Fla., 326 So.2d 413, filed December 3, 1975; State v. Fasano, 284 So.2d 683 (Fla. 1973) and Witherspoon v. State, 278 So.2d 611 (Fla. 1973) (as to Section 800.02, Fla....

...690, 694 (1934). [3] Chesebrough v. State, 255 So.2d 675, 677 (Fla. 1971). [4] Id. at 678. [5] Section 796.07, Florida Statutes: Bell v. State, 289 So.2d 388 (Fla. 1973); Miami Health Studios, Inc. v. City of Miami Beach, 491 F.2d 98 (5th Cir.1974); Section 800.02, Florida Statutes: Murray v....

...o practice law. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). An admitted "homosexual orientation" in essence means a proclivity to engage in homosexual acts. Homosexual acts are prohibited by the criminal law. § 800.02, Fla....

...The great majority of Floridians, I believe, agree that such conduct, even between consenting adults, is morally reprehensible. Also, in Florida, the law is clear that such unnatural and licentious sexual intercourse is unlawful. See sections 796.07 and 800.02, Florida Statutes (1979)....

...These facts may be determined only by further investigation. Until such investigation has been concluded and until we have received a complete report on petitioner's fitness and character, we should reserve judgment on this application for admission. BOYD, J., concurs. NOTES [*] Petitioner alleges that § 800.02, Fla. Stat. (1979), which proscribes unnatural and lascivious acts, cannot be constitutionally applied to private consensual conduct between adults. We have upheld § 800.02....

...Std. Jury Instr. (Crim.) 11.10(a). Importantly, the standard jury instruction for lewd or lascivious battery expressly lists the crime of unnatural and lascivious act ■as a category-two lesser-included offense. That offense is defined as follows: 800.02. Unnatural and lascivious act A person who commits any unnatural and lascivious act with another person commits a misdemeanor - of the second degree, punishable as provided in s. 775.082 or s. 775.083. § 800.02, Fla. Stat. (2011). The applicable standard jury instruction reads: 11.8 COMMITTING UNNATURAL AND LASCIVIOUS ACT § 800.02, Fla....

...on. [Citations omitted.] The state claims this authority is no longer applicable, because section 800.04 was significantly amended in 1999, and is intended to encompass virtually all sexual crimes against children aside from sexual battery, and thus section 800.02 should not apply when the victim is a child. This argument has no support in the text of the statutes. Section 800.04 addressed sex acts against children before 1999 and the courts still concluded that section 800.02 was a lesser-included offense of section 800.04. The information against Sherrer and the proof against him charged and proved a violation of section 800.02, and thus the trial court erred in failing to give the requested instruction....

...1971, 257 So.2d 21, which held the sodomy statute unconstitutional, the Justice of the Peace set aside his finding of probable cause as to assault with intent to commit sodomy and directed defense counsel to prepare an order finding probable cause on a charge of lewd and lascivious conduct. Fla. Stat. § 800.02 (1973)....

...Some three weeks later he filed a written demand for jury trial and transfer to the County Court of Broward County pursuant to F.S. § 932.61, F.S.A. Approximately six weeks later the cause was transferred to the county court and relator was charged with a violation of F.S. § 800.02, F.S.A....

...nd (2) there [is] some evidence adduced at trial establishing all of these elements.” Horn v. State, 120 So. 3d 1, 2 (Fla. 1st DCA 2012). Unnatural requires the State prove (1) the defendant did an act that (2) was unnatural and lascivious. See § 800.02, Fla....

...I. DISCUSSION A. Wong was entitled to the requested instruction The State charged Wong with five counts of lewd or lascivious molestation and one count of lewd or lascivious battery. The crime of unnatural and lascivious act, section 800.02, Florida Statutes (1999-2010),5 is a category two, permissive lesser included offense of both of the offenses with which Wong was charged....

...State, 898 So. 2d 260, 261 (Fla. 1st DCA 2005) (lewd or lascivious molestation); Williams v. State, 627 So. 2d 1279, 1280-81 (Fla. 1st DCA 1993) (lewd, lascivious, or indecent assault). 5 I cite to a span of years for section 800.02 because the offenses with which Wong was charged were alleged to have occurred between January 25, 2000, and May 1, 2011. I note that section 800.02 has not been amended since 1993. -9-  Florida law concerning the circumstances under which a trial court must instruct the jury on a permissive lesser included offense is well-settled....

...I don't know if [the prosecutor] has a copy of that." It is 6 I note that Wong was not present for the charge conference. 7 Section 11.8 is the standard jury instruction for "Committing Unnatural and Lascivious Act," section 800.02, Florida Statutes. - 12 - apparent from this exchange between the prosecutor and defense counsel that the "book" to which they both referred contained a copy of the Florida Standard Jury Instructions in Criminal Cases....

...The instructions as set forth in the appendix shall be effective when this opinion becomes final. It is so ordered. CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. APPENDIX 11.8 COMMITTING UNNATURAL AND LASCIVIOUS ACT § 800.02, Fla.Stat....

...The jury was also instructed on the offense of exposing sexual organs in violation of section 800.03, which required proof of “an unlawful indulgence in lust or a wicked, lustful, unchaste, licentious or sensual intent[,]” and the offense of committing an unnatural and lascivious act in violation of section 800.02, which required proof of a lascivious intent described as “lustful, normally intending to excite a desire for sexual satisfaction.” Fla....

and HOBSON and SCHEB, JJ., concur. . Fla.Stat. § 800.02 (1969).

...three earlier cases. He presents three issues on appeal, only one of which has merit. First, Jones argues that the trial court erred in refusing to give a lesser included offense instruction — committing an unnatural and lascivious act pursuant to section 800.02 — in conjunction with the court’s charge on lewd and lascivious assault on a child....

...After watching for about twenty-five seconds while standing beside the car, the officer pulled out his badge and placed Conforti under arrest. Subsequently, the trial judge found that Conforti had violated his probation and sentenced him to fifteen years in prison. We reverse the revocation of probation. Section 800.02, Florida Statutes (2000), provides: A person who commits any unnatural and lascivious act with another person commits a misdemeanor of the second degree, punishable as provided in s....

...93-10064 MM A02 (Fla. Palm Beach Cty. Ct. Apr. 4, 1993). In the instant case, we do not need to reach the issue of whether it was enough that the undercover officer found the conduct offensive. We agree with appellant’s preliminary argument that no violation of section 800.02 occurred here for a more fundamental reason — the plain wording of the statute requires that the alleged lewd and lascivious act be committed “with another person.” Here, appellant sat in his car and performed the solitary act of masturbation while the officer stood outside and looked on. It cannot be said that appellant’s masturbation was committed by a person with “another person.” The legislature seems to have implicitly recognized that section 800.02 would not be applicable to behavior such as this by designing other statutory provisions within chapter 800 to cover it....

...tate v. Knighton, 235 So. 3d 312 (Fla. 2018), modifies that lesser-included offense, as follows: The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser-included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...rolled at a school. Lesser Included Offenses UNLAWFUL SEXUAL ACTIVITY WITH CERTAIN MINORS — 794.05 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Unnatural and 800.02* 11.8* Lascivious Act* Attempt 777.04(1) 5.1 -9-  Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Assault 784.011 8.1 Battery 784.03 8.3 Unnatural and 800.02* 11.8* lascivious act* Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than - 12 - penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should be given as a lesser-included offense. See State v. Knighton, 235 So. 3d 312 (Fla. 2018). *Because the crime of Unnatural and Lascivious Act (§ 800.02, Fla....

...784.03 8.3 Assault 784.011 8.1 Battery 784.03 8.3 Unnatural and lascivious act* 800.02* 11.8* Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...Battery 784.03 8.3 Assault 784.011 8.1 Battery 784.03 8.3 Unnatural and lascivious 800.02* 11.8* act* Comments - 18 -  *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...Battery 784.03 8.3 Assault 784.011 8.1 Battery 784.03 8.3 Unnatural and lascivious 800.02* 11.8* act* Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal - 22 - sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...784.03 8.3 Assault 784.011 8.1 Battery 784.03 8.3 Unnatural and lascivious 800.02* 11.8* act (if element 1a is charged)* Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than - 25 - penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...777.04(1) 5.1 - 28 -  Exposure of Sexual 800.03 11.9 Organs Unnatural and lascivious 800.02* 11.8* act* Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla....

...CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Lewd or Lascivious 847.0135(5)(c) 11.10(f) Exhibition over Computer Service, Defendant less than 18 years of age Unnatural and lascivious act* 800.02* 11.8* Attempt 777.04(1) 5.1 - 31 -  Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla....

...PRESENCE OF AN EMPLOYEE OF A FACILITY — 800.09 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Unnatural and lascivious act* 800.02* 11.8* Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla....

...NO. None Attempt 777.04(1) 5.1 Assault 784.011 8.1 Battery 784.03 8.3 Exposure of sexual 800.03 11.9 organs Unnatural and 800.02* 11.8* lascivious act* Exposure of sexual 800.03 11.9 organs Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None - 39 -  Attempt 777.04(1) 5.1 Unnatural and 800.02* 11.8* lascivious act* Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...r vaginal penetration of another by any object. Lesser Included Offenses SEXUAL MISCONDUCT BY A PSYCHOTHERAPIST — 491.0112 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Unnatural and 800.02* 11.8* lascivious act* Attempt 777.04(1) 5.1 Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be - 41 - given as a lesser-included offense. If the sexual activity involved penile-vaginal sexual intercourse (or contact), § 800.02, Fla. Stat. should not be given as a lesser- included offense. However, if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact), § 800.02, Fla....

...The three relevant offenses are Count 1, lewd or lascivious molestation under section 800.04(5)(b), Florida Statutes; Count 2, lewd or lascivious exhibition under section 800.04(7)(b); and the requested lesser of unnatural and lascivious act under section 800.02....

...State Atty., for appellees. BOYD, Justice. We have granted oral argument in a direct appeal from denial of a petition for habeas corpus by the Circuit Court, Eleventh Judicial Circuit, in and for Dade County, in which the only issue is the constitutionality of Section 800.02, Florida Statutes....

...The decision of the trial court is affirmed. It is so ordered. OVERTON, C.J., and ROBERTS, ADKINS, SUNDBERG and HATCHETT, JJ., concur. ENGLAND, J., concurs with an opinion. ENGLAND, Justice (concurring). A majority of this Court upheld the constitutionality of Section 800.02, Florida Statutes (1975), in Thomas v....

unnatural and lascivious act, a violation of section 800.02, Florida Statutes (1995), a misdemeanor. Age

directions to enter a judgment of guilty of Section 800.02 which is a misdemeanor, and to impose sentence

...vious battery is not entitled to an instruction on the lesser-included offense of unnatural and lascivious act regardless of whether the offense is supported by the evidence at trial. The court reasoned that the legislature must have “intended for section 800.02 [unnatural and lascivious act] to be applied to different factual situations than would fall under section 800.04 [lewd or lascivious battery]. The term ‘unnatural’ in 800.02 distinguishes 800.02 from 800.04, and implies something more than what is covered by 800.04.” Id....

...Because of this legal presumption, when a defendant is charged with sexual battery of a child under twelve, the information need not expressly state that the 2 Similarly, the type of touch alleged here is “unnatural,” allowing for the instruction on the lesser included offense of unnatural and lascivious act under section 800.02, Florida Statutes (2015)....

...nt that occurred during a private, consensual, sexual moment between Clark and her former husband. The board concluded that Clark engaged in an illegal, and therefore immoral, act. Arguably, it can be inferred that the school board's order refers to section 800.02, Florida Statutes....

...During the third and final day of trial, the State and defense presented closing remarks. Following closing remarks, the trial court instructed the jury. The judge did not instruct the jury with regard to the offense of unnatural and lascivious act. See § 800.02, Fla....

...another person commits a misdemeanor of the second degree . . . .”).3 The copy of instructions that went into the jury room also did not contain such instructions. Wong did not reassert his objection to the lack of the requested instructions at that time. 3. Section 800.02 has remained the same at all relevant times. -5-  After deliberating, the jury found Wong guilty of all six counts....

...Between the time of the Franklin decision and the legislative amendments to these statutes in 1973, unlawful' sexual conduct that did not involve penetration of the female sexual organ by the male sexual organ was punishable only as a misdemeanor under section 800.02, Florida Statutes (1971)....

concur. . § 800.04(3), Fla.Stat. (1991). . § 800.02, Fla.Stat. (1991).

...During the pendency of this appeal, this Court in Franklin v. State and Joyce v. State, 257 So.2d 21 (Fla.1971), declared the above statute unconstitutional. However, we remanded the causes to the trial court with directions to enter judgments of guilt under Fla.Stat. § 800.02, F.S.A., which is a misdemeanor, and to impose sentences accordingly. As in Franklin v. State and Joyce v. State, supra, under the evidence in this case, the conduct denounced in Fla.Stat. § 800.02, F.S.A., is a lesser included offense....

this case, the conduct denounced in Fla.Stat. § 800.02, F.S.A., is a lesser included offense. Therefore

...d and lascivious battery against a minor, contrary to section 800.04(4)(a). The jury found Schuster guilty of four counts of lewd and lascivious battery, one count of lewd and lascivious molestation, and one count of an unnatural and lascivious act, section 800.02, as a lesser included offense....

...TY — 800.09 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5.1 Exposure of Sexual Organs 800.03 11.9 Unnatural and lascivious act* 800.02* 11.8* Comments *The courts do not require the State to allege the defendant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla....

Judge, dissenting. This case involves Florida Statute 800.02. Petitioner, Glenn Thomas Mohr, was charged

...instruction on unnatural and lascivious act where penile union with a child victim’s vagina is alleged in the information, regardless of the evidence adduced at trial. 742 So. 2d at 838. The Second District reasoned that “the legislature intended for section 800.02 [unnatural and lascivious act] to be applied to different factual situations than would fall under section 800.04 [lewd or lascivious battery]. The term ‘unnatural’ in 800.02 distinguishes 800.02 from 800.04, and implies something more than what is covered by 800.04.” Id. This review follows. ANALYSIS Because this matter involves a solely legal determination based on undisputed facts, our standard of review is de novo....

...unchaste, licentious, or sensual intent on the part of the person doing an act.” Fla. Std. Jury Instr. (Crim.) 11.10. At trial, Knighton requested that the trial court instruct the jury on the permissive lesser included offense of unnatural and lascivious act under section 800.02, Florida Statutes (2013)....

...2007)). -6-  Notably, the term “unnatural” in the unnatural and lascivious act instruction is separately defined from the term “lascivious,” which distinguishes unnatural from lascivious. Therefore, the “unnatural” element of section 800.02 is what separates the crime of unnatural and lascivious act from the crime of lewd and lascivious battery under section 800.04(4). Thus, in reading sections 800.02 and 800.04(4) in a way that gives full effect to all statutory provisions, we conclude that the Legislature must have intended for the crime of unnatural and lascivious act under section 800.02 to be separate and distinct from the crime of lewd and lascivious battery under section 800.04(4). The Fourth District’s contrary conclusion below renders the crimes under sections 800.02 and 800.04(4) as identical crimes with differing penalties....

...State, 212 So. 3d 351 (Fla. 2017), in cases not involving penile-vaginal sexual intercourse, the instruction on unnatural or lascivious act is a permissive lesser included offense of lewd and lascivious battery. Id. at 361. We acknowledge that, historically, section 800.02 “has been applied to homosexual acts, bestiality, digital sex, and oral sex— anything other than adult male and female sexual intercourse.” Harris, 742 So....

...at the top of the form, contained a check mark next to “jury verdict” with the hand- 3 The only lesser-included offenses discussed by the parties and included on the verdict form were for battery under section 784.03, and for an unnatural or lascivious act under section 800.02, both category two lesser-included offenses. 4 written notation: “Guilty as charged.” The Jury Trial Progress Report also reflected the verdict as guilty as charged....

...I note that under this statute the sale or distribution of obscene books or videotapes is a misdemeanor, not a felony. . The term "lewdness” does not appear to have a constant meaning or context under the Florida Criminal Code. For example, chapter 800 is entitled "LEWDNESS; INDECENT EXPOSURE." Section 800.02 criminalizes "unnatural and lascivious act[s] with another” and makes a such violations misdemeanors....

...the sexual organ of the defendant penetrated, or had union with the vagina of [P.B.].” The trial court instructed the jury on the lesser included offense of committing an unnatural and lascivious act with another person, a misdemeanor, pursuant to section 800.02, Florida Statutes....