Arrestable Offenses / Crimes under Fla. Stat. 800.04
S800.04 - SEX OFFENSE-AGAINST CHILD-FONDLING - ERROR-DEGREE NOT SAME FOR ENTIRE SECTION - F: S
S800.04 4a - LEWD LASCV BEHAVIOR - RENUMBERED. SEE REC # 7699 - F: S
S800.04 4a1 - LEWD LASCV BEHAVIOR - LEWD OR LASCIVIOUS BATTERY VICTIM AGE 12 TO 16 - F: S
S800.04 4a1 - LEWD LASCV BEHAVIOR - LEWD LASCV BATTERY VIC AGE 12 TO 16 PREV CONV - F: F
S800.04 4a2 - LEWD LASCV BEHAVIOR - LL BATT PROMO SEX ACT VIC LT 16 YOA PREV CONV - F: F
S800.04 4a2 - LEWD LASCV BEHAVIOR - PROMOTE SEXUAL ACTIVITY VICTIM LESS THAN 16 - F: S
S800.04 4b - LEWD LASCV BEHAVIOR - RENUMBERED. SEE REC # 7691 - F: S
S800.04 4c1 - LEWD LASCV BEHAVIOR - LL BAT 18YGT PREV CONV KIDNP MINOR SEXBAT LEWD - F: F
S800.04 4c1 - LEWD LASCV BEHAVIOR - LL BAT 18YGT PRE CON FALS IMPRISN MINOR SEXBAT - F: F
S800.04 4c2 - LEWD LASCV BEHAVIOR - LL BAT 18YGT PRE CON KIDNP MINOR SEX BAT CHILD - F: F
S800.04 4c2 - LEWD LASCV BEHAVIOR - LL BAT 18YGT PRE CON KIDNP MINOR LL BAT MOLEST - F: F
S800.04 4c3 - LEWD LASCV BEHAVIOR - LLBAT 18YGT PRE CON FALS IMP MINOR SEXBAT CHLD - F: F
S800.04 4c3 - LEWD LASCV BEHAVIOR - LLBAT 18YGT PRE CON FALS IMP MINR LL BAT MOLST - F: F
S800.04 4c4 - LEWD LASCV BEHAVIOR - LL BATTERY 18YGT PREV CONV SEXUAL BATT CHP 794 - F: F
S800.04 4c5 - LEWD LASCV BEHAVIOR - LLBATT 18YGT PRE CON LL BATTERY ELDER DISABLED - F: F
S800.04 4c6 - LEWD LASCV BEHAVIOR - LLBAT 18YGT PRE CON COMPUTER SEX ACT VIC LT16Y - F: F
S800.04 5b - LEWD LASCV BEHAVIOR - RENUMBERED. SEE REC # 4009 - F: F
S800.04 5b - LEWD LASCV BEHAVIOR - MOLEST VIC LESS 12YOA OFFENDER 18 YOA OR OLDER - F: L
S800.04 5d - LEWD LASCV BEHAVIOR - MOLEST CHILD 12YOA UP TO 16YOA BY LESS 18YOA - F: T
S800.04 5e - LEWD LASCV BEHAVIOR - 18+ YOA MOLEST VICTIM 12-16 YOA 2ND/SUBSQ OFF - F: F
S800.04 7b - LEWD LASCV BEHAVIOR - EXHIBITION OFF 18 YOA OLDER VICTIM LESS 16 YOA - F: S
S800.04 7c - LEWD LASCV BEHAVIOR - EXHIBITION OFF LESS 18 YOA VICTIM LESS 16 YOA - F: T
S800.04 7c - LEWD LASCV BEHAVIOR - RENUMBERED. SEE REC # 6528 - F: S
S800.04 7c - LEWD LASCV BEHAVIOR - RENUMBERED. SEE REC # 6530 - F: S
S800.04 7d - LEWD LASCV BEHAVIOR - RENUMBERED. SEE REC # 6529 - F: T
S800.04 7d - LEWD LASCV BEHAVIOR - RENUMBERED. SEE REC # 6531 - F: T
CopyCited 191 times | Published | Supreme Court of Florida
...serious personal injury." Besides instructing on sexual battery, the trial court also instructed the jury on committing a lewd and lascivious act as a lesser included offense of sexual battery. The jury convicted Ray of lewd assault as proscribed by section 800.04, Florida Statutes (1975)....
...Committing a lewd and lascivious act is not a necessarily lesser included (type 3) offense of sexual battery. Walker v. 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....
...out 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.
775.082, s.
775.083, or s.
775.084. [2] §
800.04 reads as follows: Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such chi...
CopyCited 94 times | Published | Court of Appeals for the Eleventh Circuit | 85 Fed. R. Serv. 338, 2011 U.S. App. LEXIS 9112, 2011 WL 1662901
...imprisoned.
When Lanzon requested that the government identify which criminal offense served
as the predicate for the § 2422(b) violation, the government obtained an indictment
charging him with an offense of § 2422(b) based on Florida Statute § 800.04. Since
§ 800.04 contains multiple subsections and the government did not specify which
applied, the district court dismissed the indictment.
In September 2008, the government filed a superceding indictment charging
Lanzon with a violation of § 2422(b) based on an attempted violation of Florida
Statute § 800.04(4)(a), which criminalizes engaging in sexual activity with a person
under the age of 16 years.
5
Lanzon moved to suppress the evidence seized from his truck, arguing that the
officers v...
...on the spoliation instruction.
6
Lanzon was tried and convicted before a jury in 2009. At the close of the
evidence, he moved for a judgment of acquittal. He argued that he was indicted under
the wrong subsection of § 800.04, which punished completed sex crimes rather than
solicitation to commit sex crimes....
...The court denied the
motion, reiterating that Lanzon had failed to present any evidence of bad faith by
Detective Clifton. Lanzon also filed a renewed motion for judgment of acquittal,
restating his argument that he could not have been charged in Florida under §
800.04(4)(a). He further contended that, even if Florida law recognized the crime of
7
“attempting” to violate § 800.04(4)(a), his conduct did not constitute an attempt
because his actions did not reach far enough in accomplishing the attempted crime.
Finally, he argued that the indictment failed to state an offense under Florida law
because Florida law d...
...II.
A.
Lanzon first challenges the sufficiency of the evidence supporting his
conviction. He argues the government failed to show that he “could have been
charged” under the Florida statute, § 800.04(4)(a), which he asserts criminalizes only
a completed sexual act....
...Just as Root engaged in conduct that would have constituted a
violation of O.C.G.A. §§ 16-6-3 (statutory rape) and 16-6-4 (child molestation) if he
had actually completed his crime, see id. at 1227 n.10, Lanzon engaged in conduct
that would have constituted a violation of Fla. Sta. §§ 800.04(4)(a) if he had
completed his crime.
B.
Lanzon next argues that the district court erred in denying his motion to
suppress evidence seized from his truck....
CopyCited 92 times | Published | Supreme Court of Florida | 1991 WL 238637
...buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. §
827.071(1)(g), Fla. Stat. (1987). Second, the affidavit alleged violation of section
800.04, prohibiting lewd assaults or acts upon or in the presence of a child. In pertinent part, this statute outlaws the act of knowingly committing "any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery." §
800.04(3), Fla....
...he search would fairly probably yield evidence of a violation of section
827.071. Thus, the magistrate must be upheld. Gates,
103 S.Ct. at 2332. Second and for the same reasons, the affidavit justified the magistrate's conclusion that a violation of section
800.04 had occurred....
...That is, Schmitt's conduct as described in the affidavit made nudity the focus of his attention, creating a reason to believe he was acting with a lewd and lascivious intent. This created a substantial basis justifying the magistrate's conclusion that probable cause existed of a violation of section 800.04....
...For the above reasons, the decision of the magistrate to issue a warrant may not be disturbed on appeal. The warrant and all that flowed from it was lawful, because the magistrate had a substantial basis for believing that a search of Schmitt's home would disclose evidence of a violation of sections
827.071 and
800.04....
CopyCited 77 times | Published | Court of Appeals for the Eleventh Circuit | 2001 WL 360744
...8 U.S.C. § 1326 (a)(2). Padilla pleaded guilty to the charge. Preparation of Padilla’s pre-sentence investigation report revealed additional facts. Prior to his earlier deportation, Padilla was charged by information with violation of Florida Statute § 800.04, “Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery.” See Fla. Stat. Ann. § 800.04 (1987)....
...t to his base offense level based on a previous conviction for an aggravated felony. See United States Sentencing Commission, Guidelines Manual, § 2L1.2(b)(l)(A) (Nov. 1998). In order to resolve this issue, we must determine whether Florida Statute § 800.04 constitutes the aggravated felony “sexual abuse of a minor” under 8 U.S.C....
...statutes and sentencing guidelines. United States v. Lazo-Ortiz,
136 F.3d 1282, 1284 (11th Cir.1998). IV.CONTENTIONS OF THE PARTIES A. The Aggravated Felony Issue Padilla contends that in order to determine whether violation of Florida Statute *1160 §
800.04 constitutes an aggravated felony for purposes of the sentencing enhancement of U.S.S.G....
...Padilla also notes that there is no plain language in § 1101(a)(43)(A) indicating that this body of law should not apply. Finally, because the federal sexual abuse statutes all require physical contact with the victim, whereas the Florida lewd assault statute does not, Padilla concludes that § 800.04 does not categorically constitute “sexual abuse of a minor” under 8 U.S.C....
...n federal statutory law, it explicitly included the statutory cross-reference in the subsection. In the Government’s view, absence of a cross-reference indicates an intention to rely on the plain meaning of the terms. The Government concludes that § 800.04 clearly meets the plain meaning of “sexual abuse of a minor.” B....
...by reference to other statutory provisions or by sentencing requirements, and reads, starting with the heading, “(43) The term ‘aggravated felony’ means — (A) murder, rape, or sexual abuse of a minor; .Id. § 1101(a)(43)(A). Florida Statute § 800.04 criminalizes sexual offenses that do not rise to the level of rape or sexual battery and which are committed against children under the age of sixteen. See Fla. Stat. Ann. § 800.04 (1987)....
...4 Because the statute is written in the disjunctive, it encompasses acts involving victim contact as well as acts involving no victim contact. Worling v. State,
484 So.2d 94, 94 (Fla.Dist.Ct.App.1986). The elements of the offense vary accordingly. 5 Thus, as Padilla contends, §
800.04 does not in every case require physical contact with the victim....
...Having determined that the phrase “sexual abuse of a minor” is not ambiguous and that Congress did not intend to rely on other statutory provisions for its definition, we conclude that the ordinary, common and contemporary meaning of “sexual abuse of a minor” in § 1101(a)(43) includes a violation of Florida Statute § 800.04, with or without victim contact. Because a violation of § 800.04 is “sexual abuse of a minor,” the district court did not err in applying a sixteen-level enhancement for a prior conviction for an aggravated felony pursuant to U.S.S.G....
...in supplemental authority. United States v. Nealy,
232 F.3d 825 , 830 (11th Cir.2000). Because this issue is raised for the first time in supplemental briefing, we deem it waived. Id. at 830-31. VI. CONCLUSION Because a violation of Florida Statute §
800.04 qualifies as “sexual abuse of a minor” under 8 U.S.C....
...Because Padilla raises the Apprendi issue for the first time in supplemental briefing, we deem it waived. For the foregoing reasons, the judgment of the district court is AFFIRMED. AFFIRMED. 1 . Under the provisions of the Immigration and Nationality Act, the disposition of Padilla's §
800.04 charge is a conviction. See 8 U.S.C. § 1101 (a)(48)(A). 2 . Padilla does not conclude, however, that §
800.04 can never be an aggravated felony for purposes of the § 2L1.2 enhancement. Citing our decision in Ramsey v. INS,
55 F.3d 580 (11th Cir.1995), Padilla points out that a conviction for violation of §
800.04 may qualify as an aggravated felony if it independently satisfies the definition of a "crime of violence” under § 1101(a)(43)(F), which contains the requirement that the sentence for the offense be at least one year. See 8 U.S.C. § 1101 (a)(43)(F) (providing conviction for "crime of violence” with sentence of at least one year is an aggravated felony); Ramsey v. INS,
55 F.3d 580, 583 (11th Cir.1995) (holding that Florida Statute §
800.04 is a "crime of violence” because it involves a substantial risk that physical force may be used against the victim)....
...al battery is guilty of 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. Fla. Stat. §
800.04 (1987)....
CopyCited 76 times | Published | Supreme Court of Florida | 1992 WL 4876
...noncontact sex crimes, the majority opinion can yield illogical results. Under the majority's ruling, a first-time offender who commits three counts of lewdness in the presence of a twelve-year-old, a noncontact second-degree felony, in violation of section 800.04, Florida Statutes (1989), can be sentenced to a maximum term 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 w...
CopyCited 75 times | Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 400, 1992 Fla. LEXIS 1220, 1992 WL 148230
...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. [Page A-47] *1225 LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY (Revised) F.S.
800.04 Before you can find the defendant guilty of (crime charged), the State must prove the following two elements beyond a reasonable doubt: Elements 1....
...Definitions Give in all Neither the victim's lack of chastity nor the victim's cases consent is a defense to the crime charged. Give when As used in regard to this offense the words "lewd," F.S. "lascivious" and "indecent" mean the same thing. They mean a 800.04(1) wicked, lustful, unchaste, licentious, or sensual intent on charged the part of the person doing an act....
...Give when An "assault" is an intentional, unlawful threat by word or assault is act to do violence to the person of another, coupled with an charged apparent ability to do so, and doing some act which creates under F.S. a well-founded fear in such other person that such violence
800.04(1) is imminent. Give when As used in regard to this offense the words "lewd" and F.S. "lascivious" mean the same thing and mean a wicked, lustful,
800.04(4) is unchaste, licentious, or sensual intent on the part of the charged person doing an act. Note to Give applicable definitions from F.S.
847.001 when F.S. Judge
800.04(2) is charged....
...refers to forcible sexual relations. Lanier v. State,
443 So.2d 178 (Fla. 3d DCA 1983); Chapter 84-86, Laws of Florida. [Page A-49] *1227 Explanation of proposed revision: The instruction begins on page 122 of the manual. The revision is based on F.S.
800.04 as amended in 1990....
...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 or in Assault
784.011 presence of child
800.04 Battery
784.03 Unnatural and lascivious act
800.02 Arson
806.01(1) None Arson
806.01(2) Arson
806.01(2) [*f] Criminal mischief Attempt
806.13(1)(b)1 Criminal mischief
806.13(1)(b)2 Criminal mischief
806.13(1)(b)3 Criminal...
CopyCited 73 times | Published | Supreme Court of Florida
...en if it was sufficient, the sentence of six months to twenty-five years was excessive. In the return to the writ filed by the Attorney General on behalf of the respondent, it is asserted that the petitioner was correctly charged with a violation of § 800.04, Fla. Stat. 1957, F.S.A.; it is conceded, however, that the sentence is excessive. Section 800.04, supra, provides that "Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd or lascivious or indecent manner, or who shall knowingly commit any lewd or lasciviou...
...(yellow supplement), which, inter alia, applies to the offense of "lewd and lascivious behavior." § 801.02, Fla. Stat. 1957, F.S.A. It is not necessary, however, to decide whether the Child Molester Act comprehends a lewd and lascivious act proscribed by § 800.04, since it must be held that the petitioner could not legally be convicted of a violation of § 800.04 upon the charge made in the information filed against him....
...Under Subsection (2) of § 847.01, supra, a person who wilfully or knowingly shows such a photograph "to any person under the age of seventeen years" may be sentenced to a maximum of five years in prison. It is apparent that the State has attempted to charge a violation of § 800.04, supra, for which a maximum of ten years imprisonment may be imposed, by the commission of an act denounced by either § 847.01(1) or § 847.01 (2), depending upon the proof, for either of which offenses a less severe penalty is imposed than that prescribed by § 800.04....
...273, 274,
73 S.Ct. 1152,
97 L.Ed. 1607; United States v. Lamb, D.C. Cal. 1957,
150 F. Supp. 310; Pereira v. United States, 1953,
347 U.S. 1, 9,
74 S.Ct. 358, 98 L.Ed.; cf. Faulkner v. State, 1941,
146 Fla. 769,
1 So.2d 857 (decided prior to the enactment of §
800.04, supra, by Ch....
...Hess, 8 Cir., 1934,
71 F.2d 78; Price v. United States, 5 Cir., 1934,
74 F.2d 120; Iriarte v. United States, 1 Cir., 1946,
157 F.2d 105, 167 A.L.R. 494; Shelton v. United States, 1947, 83 U.S.App. D.C. 32,
165 F.2d 241; United States v. Gross, D.C.Nev. 1958,
159 F. Supp. 316. Section
800.04, supra, does not attempt to define the conduct that would constitute a lewd and lascivious act....
...330,
19 So.2d 883, 884. The only act alleged in the information in the instant case is the exhibition of a lewd and pornographic picture in the presence of a female, aged 11. Assuming, arguendo, that this is a "lewd or lascivious act" clearly within the intendment of §
800.04, cf....
CopyCited 72 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 557, 1985 Fla. LEXIS 3922
...The substance was [(specific substance alleged)] [a mixture containing (specific substance alleged)]. 3. The quantity of the substance involved was four grams or more." 13. The statute on lewd, lascivious or indecent conduct was amended in 1984 to refer to children under the age of sixteen. § 800.04, Fla....
CopyCited 72 times | Published | Supreme Court of Florida
...Defendant was charged with knowingly committing a lewd and lascivious act in the presence of a male child under the age of fourteen years by willfully and knowingly committing the act of sexual intercourse in the presence of the said minor child. The statute involved is Fla. Stat. § 800.04, F.S.A., which reads as follows: "Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lasci...
...She was sentenced to serve a term of from six months to eighteen months in the state prison. A notice of appeal filed with the District Court of Appeal, Second District, was transferred to this Court because the trial court passed directly on the constitutionality of Fla. Stat. § 800.04, F.S.A., quoted above....
...On a plea of nolo contendere, such evidence as to character becomes material in determining sentence. It was, therefore, admissible and properly considered by the trial judge. There are only two questions which may be considered by this Court in the case sub judice : First, is Fla. Stat. § 800.04, F.S.A., constitutional, and secondly, were the acts performed by the defendant a violation of the statute? Defendant says the statute violates the Fifth and Fourteenth Amendments of the United States Constitution and the Declaration of Rig...
...It is generally used to indicate gross indecency with respect to the sexual relations. See 50 Am.Jur.2d, Lewdness, Indecency, etc., § 1, pp. 450-451, which contains a discussion of the common law definition of lewdness. This Court in Boles v. State,
158 Fla. 220,
27 So.2d 293 (1946), in discussing Fla. Stat. §
800.04, F.S.A., said: "In fine, the statute condemns an assault on or an act committed in the presence of a child under fourteen years of age in a lewd, lascivious, or indecent manner, without intent to commit rape....
...1st, 1959), said: "In this consideration we must acknowledge that the words `lewd and *678 lascivious behavior' are not defined in the Child Molester Act. It is also true that those words are not defined anywhere in the Florida Statutes. It is to no avail to resort to Section 800.04, Florida Statutes, F.S.A., for in that section reference is made to handling, fondling, or assaulting a child under the age of fourteen `in a lewd, lascivious or indecent manner' and to knowingly commit `any lewd or lascivious act' in the presence of such child, etc....
...We hold that sexual intercourse between a husband and wife in the presence of a child under fourteen years of age for the purpose of demonstrating to such child the method of procreation of the human race is a lewd and lascivious act and a violation of Fla. Stat. § 800.04, F.S.A....
...ROBERTS, C.J., and CARLTON, BOYD, McCAIN and DEKLE, JJ., concur. ERVIN, J., dissents in part and concurs in part with opinion. ERVIN, Justice (dissenting in part and concurring in part): I am in agreement with Justice Adkins' excellent opinion insofar as he holds F.S. section 800.04, F.S.A., to be constitutional on its face....
CopyCited 71 times | Published | Supreme Court of Florida | 2001 WL 776269
...rephrased certified question in the negative and affirm the First District's decision. FACTS AND BACKGROUND Petitioner Steven Seagrave was convicted of committing a lewd, lascivious or indecent assault on a child under the age of sixteen pursuant to section 800.04, Florida Statutes (1997)....
...contact to warrant the assessment of victim injury points under the sentencing guidelines); Blackburn v. State,
762 So.2d 989, 990 (Fla. 5th DCA 2000) (holding that defendant's rubbing of his erect penis on the victim's clothed back in violation of section
800.04(1) constituted sexual contact for purposes of assessing victim injury points); Vural v....
...and battery after defendant forced victim to masturbate defendant's penis); Mackey v. State,
516 So.2d 330, 330-31 (Fla. 1st DCA 1987) (holding that victim injury points were properly assessed for sexual contact for lewd and lascivious conduct under section
800.04, where defendant fondled a thirteen-year-old by touching the victim above the crotch)....
...011(7). Seagrave asserts that victim injury points are limited to criminal offenses that rise to the level of a sexual battery. In other words, Seagrave maintains that the trial court improperly assessed victim injury points for his conviction under section 800.04 for fondling a minor victim's buttocks and placing the victim's hand on Seagrave's clothed penis because this conduct did not involve a union of the sex organ of one person with the oral, anal or vaginal opening of another....
...tive and contrary to the plain and commonly understood meaning of the term "sexual contact." Under the interpretation of "sexual contact" advocated by Seagrave, section 921.0011(7)(b)2. would be inapplicable to defendants convicted under subsections
800.04(1) and (2) of the lewd and lascivious conduct statute because these subsections prohibit a variety of acts that do not necessarily require the union of a sexual organ of one person with the oral, anal or vaginal opening of another. Section
800.04(1) of the lewd and lascivious conduct statute provides that a person who "[h]andles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner" commits a second-degree felony. Section
800.04(2), Florida Statutes (1997), likewise criminalizes "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of 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." Both subsections
800.04(1) and (2) include acts that do not necessarily involve union of the sex organs of one person with the oral, anal or vaginal opening of another. See Altman v. State,
756 So.2d 148, 149-50 (Fla. 4th DCA 2000) (holding that imposition of victim *287 injury points for sexual contact may be appropriate where defendant was convicted of three lewd acts in violation of section
800.04(1) for tongue-kissing the minor victim and one lewd act in violation of section
800.04(2) for rubbing his crotch against the victim's crotch and buttocks while both were clothed)....
...exual battery crimes, especially given the fact that the sentencing guidelines expressly applied to crimes involving lewd and lascivious conduct encompassed within chapter 800. [10] In fact, it was not until 1984 that the Florida Legislature amended section 800.04 to include "Commit[ing] an act defined as sexual battery under s. 794.0011(1)(f)." § 800.04, Fla....
...penetration." At the time that the scoresheet was codified, however, and before this Court's issuance of Karchesky, the district courts of appeal had uniformly approved the assessment of sexual contact victim injury points for acts of fondling under section 800.04, the lewd and lascivious conduct statute....
...We recognize, however, that the Fourth District Court of Appeal in Borjas v. State,
790 So.2d 1114 (Fla. 4th DCA 2001), recently certified conflict with Seagrave with regards to whether "sexual contact" included the fondling of a victim's buttocks. [3] Section
800.04 provides: A person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; (2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,...
...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)....
...1985), in which the court held that having consensual sexual intercourse with an unchaste twelve-year-old girl did not constitute an offense of handling or fondling in a lewd, lascivious or indecent manner or the offense of making an assault in a lewd, lascivious or indecent manner under section 800.04. See Senate Journal (May 24, 1984). The Legislature amended section 800.04 so that "the crime of lewd and lascivious handling, fondling, or assault of a child included sexual intercourse and other acts defined as sexual battery." Id....
...Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines,
628 So.2d 1084, 1089 (Fla.1993). [14] See Mackey,
516 So.2d at 330-31(holding that victim injury points were properly assessed for sexual contact for lewd and lascivious conduct under section
800.04, where defendant fondled a thirteen-year-old by touching the victim above the crotch); Beasley v....
...y and one count of lewd and lascivious assault upon a child where defendant opened victim's legs and started to pull down her bathing suit and shorts); O'Bright v. State,
508 So.2d 385, 386 (Fla. 1st DCA 1987) (holding that defendant convicted under section
800.04(1) with fondling the victim's genitals and having her fondle the defendant's genitals, without committing the crime of sexual battery, could be assessed victim impact points for "contact but no penetration."); Barrentine v....
..."did handle, fondle or make an assault" upon the victim); Worling v. State,
484 So.2d 94, 94 (Fla. 5th DCA 1986) (holding that imposition of twenty victim injury points was proper where defendant was convicted of fondling a minor victim pursuant to section
800.04)....
CopyCited 67 times | Published | Supreme Court of Florida | 2007 WL 3101743
...rmissive presumption set forth in section
893.101(2)-(3), Florida Statutes (2006). [2] *247 The Committee also proposes six new instructions with regard to various offenses involving lewd and lascivious conduct. These new instructions are based upon section
800.04, Florida Statutes (2006), entitled, "Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age." [3] Upon consideration and with several modifications to the Committee's proposals, we hereby aut...
...Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 1981 and amended in 1989, and 2007. See also SC03-629 [
869 So.2d 1205 (Fla.2004)]. 11.10(a) LEWD OR LASCIVIOUS BATTERY (ENGAGING IN SEXUAL ACTIVITY) §
800.04(4)(a), Fla....
...The defendant's ignorance of victim's age, victim's misrepresentation of his or her age, or the defendant's bona fide belief of victim's age is not a defense to the crime charged. Lesser Included Offenses --------------------------------------------------- LEWD OR LASCIVIOUS BATTERY (ENGAGING IN SEXUAL ACTIVITY) 800.04(4)(a) --------------------------------------------------- CATEGORY CATEGORY FLA....
...--------------------------------------- Unnatural and lascivious act
800.02 11.8 --------------------------------------------------- Comment This instruction was adopted in 2007. 11.10(b) LEWD OR LASCIVIOUS BATTERY (ENCOURAGING, FORCING OR ENTICING) §
800.04(4)(b), Fla....
...The defendant's ignorance of victim's age, victim's misrepresentation of his or her age, or the defendant's bona fide belief of victim's age is not a defense to the crime charged. Lesser Included Offenses --------------------------------------------------- LEWD OR LASCIVIOUS BATTERY (ENCOURAGING, FORCING OR ENTICING) 800.04(4)(b) --------------------------------------------------- CATEGORY CATEGORY FLA....
...pecified Locations, to include additional locations and distances in accordance with current legislation. See §
893.13(1)(c)-(f), Fla. Stat. (2006). Other editorial, grammatical, and stylistic changes are proposed throughout these instructions. [3] Section
800.04(4)-(7), Florida Statutes (2006), set forth the offenses of lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition....
CopyCited 64 times | Published | Court of Appeals for the Eleventh Circuit | 1999 U.S. App. LEXIS 9038, 1999 WL 300783
...a crime of violence within
the meaning of the guidelines. The other offense clearly qualified under the guidelines.
7
The disputed conviction was for lewd assault, in violation of section 800.04, Florida Statutes.3 There
is no indication in the Presentence Investigation Report or elsewhere in the record under which subsection
he was convicted....
...violate the statute which do not
"encompass as an element the use, attempted use or threatened use of physical forces against" the victim.
U.S.S.G. § 4B1.2. In Ramsey v. INS,
55 F.3d 580 (11th Cir.1995), however, we held that a conviction under
section
800.04(1), Florida Statutes, is an aggravated felony for deportation purposes under 8 U.S.C....
...Neither the victim's lack
of chastity nor the victim's consent is a defense to the crime proscribed by this section. A
mother's breast feeding of her baby does not under any circumstance violate this section.
Fla. Stat. §
800.04 (1993).
8
1251(a)(2)(A)(iii). Under that section, attempted lewd assault would be an aggravated felony only if it
constituted a crime of violence as defined in 18 U.S.C. section 16. We then held that
Although a violation of §
800.04 might be accomplished without the use of physical force, we
conclude that the offense is a felony which involves a substantial risk that physical force may be used
against the victim in the course of committing the offense.
55 F.3d at 583. The Court then held that a violation of section
800.04(1), Florida Statutes, is a crime of
violence as defined in 18 U.S.C. section 16. Ramsey,
55 F.3d at 583. Based on the Court's analysis, there
is no substantial difference between section
800.04(1) and the other subsections of section
800.04, so the
Ramsey decision would apply to any conviction under that statute.
Nor is there any substantial difference that requires a different decision between the definition of a
crime of violence under 18 U.S.C....
...he holding in Ramsey v. INS and the decision to be made
in this case. See United States v. Coronado-Cervantes,
154 F.3d 1242, 1243 (10th Cir.1998) (citing other
circuits). Therefore, we affirm the district court's use of the state conviction under section
800.04, Florida
Statutes as a prior conviction for career offender purposes under U.S.S.G....
CopyCited 57 times | Published | Supreme Court of Florida | 2008 WL 596805
...Comment This instruction was adopted in 1981 and was amended in 1985 [
477 So.2d 985], 1992 [
603 So.2d 1175], 2005 [
911 So.2d 766], 2006 [
930 So.2d 612], and 2008. 11.10 LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY §
800.04, Fla....
...trated by an object]. d. (Defendant) knowingly committed a lewd or lascivious act in the presence of (victim). Definitions Give in all cases. Neither the victim's lack of chastity nor the victim's consent is a defense to the crime charged. Give when § 800.04(1), Fla....
...Stat., is charged. As used in regard to this offense the words "lewd," "lascivious," and "indecent" mean the same thing. They mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act. Give when assault is charged under § 800.04(1), Fla....
...An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent. Give when § 800.04(4), Fla....
...e part of the person doing an act. "In the presence of" means that (victim) saw, heard, or otherwise sensed that the act was taking place. See State v. Werner,
609 So.2d 585 (Fla. 1992) . Give applicable definitions from §
847.001, Fla. Stat., when §
800.04(2), Fla....
...ations. Lanier v. State,
443 So.2d 178 (Fla. 3d DCA 1983) ; Chapters 84-86, Laws of Florida. Lesser Included Offenses ------------------------------------------------------ LEWD, LASCIVIOUS, OR INDECENT ASSAULT OR ACT UPON OR IN PRESENCE OF CHILD
800.04 ------------------------------------------------------ CATEGORY CATEGORY FLA....
CopyCited 54 times | Published | Court of Appeals for the Eleventh Circuit | 2014 WL 6234529
...d in sexual
intercourse with a 14-year-old female victim. The state charged him with lewd or
4
Case: 10-10676 Date Filed: 11/14/2014 Page: 5 of 107
lascivious battery, see Fla. Stat. § 800.04(4) (2004), but he pleaded guilty to a
lesser offense of third-degree felony child abuse....
CopyCited 51 times | Published | Supreme Court of Florida | 2006 WL 1699524
...FACTS Steve Paul was charged with committing six acts of lewd and lascivious offenses against a thirteen-year-old victim and was found guilty of four of the counts. Specifically, the jury found that Paul (1) intentionally touched the victim's genital area or the clothing covering it, contrary to section 800.04(5), Florida Statutes (1999); (2) intentionally touched the victim in a lewd or lascivious manner by kissing the victim's neck, contrary to section 800.04(6), Florida Statutes (1999); (3) intentionally touched the victim in a lewd or lascivious manner by rubbing his penis on the victim's stomach area, contrary to section 800.04(6), Florida Statutes (1999); and (4) intentionally exposed his genitals in a lewd or lascivious manner in the presence of the victim, contrary to section 800.04(7), Florida Statutes (1999)....
...The Fourth District then addressed whether double jeopardy was violated when the defendant was convicted of two counts for each of these two separate criminal episodes. The State contended that double jeopardy protections were not violated because the Legislature had recently amended section
800.04 to create separate offenses for each of the acts committed. Paul,
912 So.2d at 11. The district court rejected this argument, holding that based on its reading of the statutory scheme of section
800.04, there was no legislative authorization for "separate convictions and sentences for each of the cumulative acts occurring in the course of one continuous and almost simultaneous act of lewd and lascivious activity on a minor, particularly where each lesser act leads up to the most serious of the charges." Id....
...Instead, the court deemed "the acts leading up to, or occurring as part of, the most serious, in each room, to be permissive lesser offenses." Id. However, the court noted that the Fifth District Court of Appeal took a contrary view regarding the recent amendments to section 800.04 when that court held that the amendment to the statute intended to authorize separate convictions and punishments for each subsection of section 800.04: The language and structure of the amended statute does focus on individual acts and creates separate criminal offenses in each subsection that designates a specific degree of the crime and the punishment to be imposed for each....
...te punishments for two crimes, application of the Blockburger `same-elements' test pursuant to section
775.021(4) . . . is the sole method of determining whether multiple punishments are double-jeopardy violations.") (footnote omitted). In reviewing section
800.04, we do not find a clear statement of legislative intent, and thus we must employ the Blockburger test as codified in section
775.021, Florida Statutes (2005), to determine whether separate offenses exist....
...The first criminal episode occurred in the living room when Paul first entered the home. Specifically at issue are two counts: (1) count Ilewd and lascivious molestation by touching the victim's genital area or the clothing covering it in violation of section 800.04(5)(a); and (2) count Vlewd and lascivious conduct by kissing the victim's neck in violation of section 800.04(6)(a)....
...gard to the accusatory pleading or the proof adduced at trial. " §
775.021(4)(a), Fla. Stat. (2005) (emphasis added). Therefore, we must review the necessary elements of each violation under the statute itself. In comparing the elements of sections
800.04(5)(a) and
800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section
800.04(6)(a)(1) defines "lewd or lascivious conduct" as any intentional touching of "a person under 16 years of age in a lewd or lascivious manner," while section
800.04(5)(a) defines "lewd or lascivious molestation" as the intentional touching "in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator." §
800.04, Fla....
...Next, the Court must consider whether multiple convictions and punishments are permitted for the criminal episode which transpired in the bedroom: (1) count IVlewd and lascivious conduct by rubbing his penis on the victim's stomach in violation of section 800.04(6)(a); and (2) count VIlewd and lascivious exhibition by intentionally exposing his penis to the victim in violation of section 800.04(7)....
.... . . . (7) LEWD OR LASCIVIOUS EXHIBITION. (a) A person who: . . . . 2. Intentionally exposes the genitals in a lewd or lascivious manner; . . . in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition. § 800.04, Fla....
...e lesser offenses the statutory elements of which are subsumed by the greater offense." §
775.021(4)(b), Fla. Stat. (2005). Section
775.021(4)(b)(1), which concerns offenses that "require identical elements of proof," does not apply here. Violating section
800.04(6) requires *1175 a touching, and violating section
800.04(7) requires an exhibition of the offender's genitals....
...ivious exhibition stem from the same crime of lewd, lascivious, or indecent assault or act upon or in the presence of child. In 1999, the Legislature delineated the crime of lewd, lascivious, or indecent assault upon a child into separate crimes: subsection 800.04(6) prohibits lewd or lascivious conduct upon a child; and subsection 800.04(7) prohibits lewd or lascivious exhibition upon or in the presence of a child....
...rohibited touching with his genitals, therefore also exposing his genitals in the process of touching the victim. However, if he had simply touched the victim's stomach in a lewd manner with any other portion of his body, he would have only violated 800.04(6)....
...y is not violated by these two convictions. CONCLUSION In conclusion, we approve in part the decision of the district court, to the extent that it found two criminal episodes *1176 occurred and that Paul could not be convicted of both a violation of section
800.04(6)(a)(1), Florida Statutes, and section
800.04(5)(a), Florida Statutes, for the acts which occurred in the living room. However, we quash the district court's determination that application of section
775.021 prohibits convictions of both section
800.04(6)(a) (lewd and lascivious conduct) and section
800.04(7) (lewd and lascivious exhibition) for the acts that occurred in the bedroom....
...here the Legislature has literally "provided by statute" that multiple crimes are "degrees of the same offense." The Legislature has not done so with respect to the crimes herei.e., lewd or lascivious conduct and lewd or lascivious exhibition. See § 800.04, Fla....
...Albernaz v. United States,
450 U.S. 333, 343,
101 S.Ct. 1137,
67 L.Ed.2d 275 (1981). Under the Court's decision today, one who exposes and then uses his penis to commit a sexual touching of a victim in a single episode may be convicted of two crimes under section
800.04, Florida Statutes....
...Lewd exposure and lewd touching are separate evils within the meaning of Florida and Gordon, which found battery and attempted murder to be separate evils, but they derive from the same core offense of lewd or lascivious conduct involving children. The core offense in section 800.04 is set forth in the title of the statute, "Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age." The core offense is also evident in the 1983 version of the statute, before the first of se...
...er the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree.... § 800.04, Fla....
...inherent in the murder or attempted murder. Nor can I construe this provision to permit the equally illogical result of separate convictions *1182 for a progression of lewd or lascivious acts in a single episode that violate separate subsections of section 800.04....
...s, and without the requisite time for the defendant to pause and reflect in order to form a second criminal intent. Paul v. State,
912 So.2d 8, 10 (Fla. 4th DCA 2005) (citations omitted). The Second District, reversing two of three convictions under section
800.04 for handling and fondling that preceded intercourse on each of four occasions, concluded that "[t]he constitutional guarantee against double jeopardy prohibits multiple convictions for lewd and lascivious acts that are not sufficiently discrete to be deemed separate offenses." Gisi v....
...rsons less than 16 years of age" under the "separate elements" test in section
775.021(4)(a), Florida Statutes (2005). I also agree that Paul's acts in the bedroom of exposing his penis and rubbing his penis on the victim's stomach violated sections
800.04(6)(a) and
800.04(7), which have different elements, necessitating analysis under the three exceptions in section
775.021(4)(b) to the legislative preference for separate convictions....
...jeopardy is not a concern. See Hayes v. State,
803 So.2d 695, 700 (Fla.2001) ("[T]he prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts."). [4] Both section
800.04(6)(a) and section
800.04(5)(a) include specific alternative conduct. Specifically, section
800.04(6)(a) also addresses the crime of soliciting a person under age sixteen years of age to commit a lewd act, while section
800.04(5)(a) includes forcing or enticing a person under sixteen years of age to touch the perpetrator....
...nsaction. Our most reliable guide to legislative intent is the statutory language. Because the "core offense" analysis has no firmer a statutory foundation than the majority's "primary evil" analysis, I reject them both. [7] Significant revisions to section 800.04 took place in 1984, 1990, and 1999....
CopyCited 48 times | Published | Supreme Court of Florida | 2001 WL 359697
...ing minors from harmful sexual conduct. In both cases, however, the issue before us was the constitutionality of the statutes that criminalized certain sexual behavior even if the minor victim engaged in consensual sex. We rejected the argument that section 800.04, Florida Statutes (1991), entitled "Lewd, lascivious, or indecent assault or act upon or in presence of child," violated the privacy rights of the females with whom the defendants had sexual intercourse....
CopyCited 47 times | Published | Supreme Court of Florida | 1988 WL 128166
...5th DCA 1987), in which the district court expressly declared valid section
90.803(23), Florida Statutes (1985). [1] We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The petitioner, Paul Perez, was charged with a lewd assault upon a three-and-one-half-year-old child, in violation of section
800.04, Florida Statutes (1985)....
CopyCited 45 times | Published | Court of Appeals for the Eleventh Circuit
...The
question is whether the district court properly characterized one of Rutherford’s predicate offenses
as a crime of violence within the meaning of the guidelines. The other offense clearly qualified
under the guidelines.
The disputed conviction was for lewd assault, in violation of section 800.04, Florida
Statutes.3
3
A person who:
(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd,
lascivious, or indecent manner;
(2) Com...
...Neither
the victim’s lack of chastity nor the victim’s consent is a defense to the crime
proscribed by this section. A mother’s breast feeding of her baby does not under
any circumstance violate this section.
Fla. Stat. § 800.04 (1993).
9
There is no indication in the Presentence Investigation Report or elsewhere in the record under
which subsection he was convicted....
...ate the statute which do not
“encompass as an element the use, attempted use or threatened use of physical forces against” the
victim. U.S.S.G. § 4B1.2. In Ramsey v. INS,
55 F.3d 580 (11th Cir. 1995), however, we held that
a conviction under section
800.04(1), Florida Statutes, is an aggravated felony for deportation
purposes under 8 U.S.C. section 1251(a)(2)(A)(iii). Under that section, attempted lewd assault
would be an aggravated felony only if it constituted a crime of violence as defined in 18 U.S.C.
section 16. We then held that
Although a violation of §
800.04 might be accomplished without the use of physical force,
we conclude that the offense is a felony which involves a substantial risk that physical force
may be used against the victim in the course of committing the offense.
55 F.3d at 583.
The Court then held that a violation of section
800.04(1), Florida Statutes, is a crime of violence
as defined in 18 U.S.C. section 16. Ramsey,
55 F.3d at 583. Based on the Court’s analysis, there
is no substantial difference between section
800.04(1) and the other subsections of section
800.04,
so the Ramsey decision would apply to any conviction under that statute.
Nor is there any substantial difference that requires a different decision between the
definition of a crime of violence under 18 U.S.C....
...1993).
There is no principled difference between the holding in Ramsey v. INS and the decision to
be made in this case. See United States v. Coronado-Cervantes,
154 F.3d 1242,1243(10th Cir.
1998)(citing other circuits). Therefore, we affirm the district court’s use of the state conviction
under section
800.04, Florida Statutes as a prior conviction for career offender purposes under
U.S.S.G....
CopyCited 44 times | Published | Supreme Court of Florida | 1994 WL 202545
...Henson of Kirkconnell, Lindsey & Snure, P.A., Winter Park, amicus curiae for Florida Ass'n of Crim. Defense Lawyers (FACDL). McDONALD, Senior Justice. We review Jones v. State,
619 So.2d 418 (Fla. 5th DCA 1993), which upheld the constitutionality of section
800.04, Florida Statutes (1991)....
...importance. Id. at 422. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. We approve the decision of the district court. In case number 81,970, Quarry Jones, age eighteen, was charged and convicted of violating section 800.04, Florida Statutes (1991). Section 800.04 provides that 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 actual or simulated sexual intercourse, deviate sexual intercourse,...
...The court sentenced him to four and one-half years' imprisonment, to be followed by six months' probation. The district court affirmed the conviction. In case number 81,992, Rodriguez, age nineteen, and Williams, age twenty, were also charged with violating section 800.04....
...The parties stipulated at trial that the girls with whom the defendants had sexual intercourse were fourteen years of age and consented to having intercourse. Neither girl desired to prosecute and the charges were instituted by the sister in Rodriguez and by the mother in Williams. The trial court held section 800.04 unconstitutional as applied and the district court reversed....
...they do not want the "protections" advanced by the State. However, neither the level of intimacy nor the degree of harm are relevant when an adult and a child under the age of sixteen engage in sexual intercourse. The statutory protection offered by section 800.04 assures that, to the extent the law can prevent such activity, minors will not be sexually harmed....
...The law of sex, however, can operate as a value generating force when those who create or who are governed by it perceive in the law an underlying vision of appropriate sexual conduct. Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S.Cal.L.Rev. 777, 777 (1988). The legislature enacted section 800.04 based on a "morally neutral judgment" that sexual intercourse with a child under the age of sixteen, with or without consent, is potentially harmful to the child....
...t of children beyond the scope of its authority to control adults." Anderson v. State, 562 P.2d 351, 358 (Alaska 1977) (upheld statute prohibiting fellatio with a child under sixteen years of age, regardless of consent). The petitioners contend that section
800.04 should be struck down given our decision in In re T.W.,
551 So.2d 1186 (Fla....
...re their minds and bodies have sufficiently matured to make it appropriate, safe and healthy for them."
619 So.2d at 424 (Sharp, J., concurring specially). Accordingly, we approve the decision of the district court upholding the constitutionality of section
800.04, Florida Statutes (1991), affirming the conviction in Jones, and remanding Rodriguez and Williams for appropriate action....
CopyCited 44 times | Published | Court of Appeals for the Eleventh Circuit | 2003 WL 21715880
...person can be charged with a criminal offense, or attempts to do so,
shall be fined under this title, imprisoned not more than 15 years, or
both.2
2
The district court found that Panfil had violated Fla. Stat. § 800.04(4) and (6). (R.3
at 10.) Section 800.04(4) provides that “[a] person who: (a) Engages in sexual activity with a person
12 years of age or older but less than 16 years of age . . . commits lewd or lascivious battery, a felony
of the second degree . . . .” Fla. Stat. § 800.04(4). Section 800.04(6) provides that “[a] person who
....
...In ruling that the CDA was overbroad,
the Reno Court focused on the terms “indecent” and “patently offensive,” contained
respectively in 47 U.S.C. § 223(a)(B)(ii) and § 223(d)(1)(B).
521 U.S. at 877, 117
lascivious conduct.” Fla. Stat. §
800.04(6). Section
800.04(1) defines sexual activity as “the oral,
anal, or vaginal penetration by, or union with, the sexual organ of another . . . .” Fla Stat. §
800.04(1).
5
S....
CopyCited 42 times | Published | Court of Appeals for the Eleventh Circuit | 2001 U.S. App. LEXIS 19967, 2001 WL 1033410
...d in section 1101(a)(43)(A). We cannot say that the Board’s interpretation of section 1101(a)(43)(A) was unreasonable. Our recent decision in Padil-lar-Reyes also supports the Board’s view. In Padillar-Reyes, we concluded that a conviction under section
800.04 of the Florida Code for lewd or lascivious conduct committed upon or in the presence of a minor constituted “sexual abuse of a minor,” as defined by 8 U.S.C. § 1101 (a)(43)(A). See Padilla-Reyes,
247 F.3d at 1163 . When the defendant in Pa-dillar-Reyes was convicted, section
800.04(3) provided that a person who “[k]nowingly 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.” Fla. Stat. §
800.04 (3) (1987)....
CopyCited 42 times | Published | Court of Appeals for the Eleventh Circuit | 1995 WL 334423
...Ramsey appealed the
deportation order to the Board of Immigration Appeals (BIA). After
conducting a de novo review, the BIA dismissed Ramsey's appeal.
Ramsey now appeals from the BIA decision, contending that the BIA
erred in determining his conviction for attempted lewd assault
under Florida Statutes § 800.04(1) was an aggravated felony, and
that the BIA abused its discretion by denying Ramsey's request for
a waiver of deportability under INA § 212(c), 8 U.S.C....
...United States; they are all United States citizens. In addition,
Ramsey has fathered four children, all of whom live in the United
States and are United States citizens.
On September 10, 1990, Ramsey was convicted of lewd assault in
violation of Florida Statutes § 800.04(2) for having committed a
sexual battery "upon A.R., a child under the age of 16 years, by
inserting his penis in A.R.'s vagina." (R.1 at 190, 194)....
...He was
sentenced to five years of supervised probation. While Ramsey was
still on probation, he committed another violation. On March 8,
1993, Ramsey was charged with violating Florida Statutes §§
777.04(1) and
800.04(1) by "attempt[ing] to commit a Lewd Assault."
The information alleged that Ramsey "attempt[ed] to rub M.W.'s
vagina, but [he] failed in the perpetration or was intercepted or
prevented in the execution of said offense." (R.1 at 171)....
...deportable under INA § 241(a)(2)(A)(iii) as an aggravated felon.
Ramsey contends that his conviction for attempted lewd assault is
an aggravated felony only if it constitutes a crime of violence, as
defined in 18 U.S.C. § 16. Ramsey argues that his violation of
Fla.Stat. § 800.04 is not a crime of violence....
...sical force
against the person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 16. In determining whether Ramsey committed a crime of
violence by violating Florida Statutes §§
777.04(1) and
800.04(1),
we only look at the statutory definition of the crime of
conviction, not the underlying facts and circumstances of Ramsey's
particular offense....
...992.
Because both the criminal conduct and the conviction for
this offense took place after the effective date of the 1990
amendment, Ramsey's conviction for attempted lewd assault in
violation of Fla.Stat. §§
777.04(1) and
800.04(1)
constitutes an "aggravated felony" if the underlying crime
constitutes a "crime of violence" as stated in INA §
101(a)(43)(F).
Ramsey violated Florida Statutes §§
777.04(1), and
800.04(1),
by attempting a lewd assault on a child under the age of 16.
Section
777.04(1) criminalizes the attempt to commit substantive
offenses. Section
800.04(1) defines the underlying substantive
offense that Ramsey attempted to commit....
.......
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....
Fla.Stat. §
800.04. Thus, a violation of section
800.04 may be
committed through a variety of acts, such as handling, fondling, or
assaulting a child in a lewd, lascivious, or indecent manner.
Although a violation of §
800.04 might be accomplished without the
use of physical force, we conclude that the offense is a felony
which involves a substantial risk that physical force may be used
against the victim in the course of committing the offense. Two
other circuits have come to the same conclusion in analyzing
similar statutes. See Reyes-Castro,
13 F.3d at 378-79; Rodriguez,
979 F.2d at 140-41. Therefore, we hold that a violation of Florida
Statutes §
800.04(1) is a "crime of violence" as defined in 18
U.S.C. § 16.
We note that Ramsey was not convicted of the substantive
offense, but rather of attempting to commit an act in violation of
§
800.04(1)....
..., it
follows that an attempt to commit such a crime also involves a
substantial risk of physical force. Therefore, we conclude that
the attempt to commit lewd assault, in violation of Florida
Statutes §§
777.04(1) and
800.04(1), is a felony involving a
substantial risk that physical force may be used against the
victim....
...did not err in finding Ramsey deportable as an aggravated felon
pursuant to INA § 241(a)(2)(A)(iii).
IV. CONCLUSION
We hold that an attempt to commit a lewd assault in violation
of Florida Statutes §§
777.04(1) and
800.04(1) is a "crime of
violence" as defined in 18 U.S.C....
CopyCited 42 times | Published | Supreme Court of Florida | 158 Fla. 220, 1946 Fla. LEXIS 550
...Boles was tried and convicted on an information charging that he did make a lewd and lascivious assault on a child twelve years of age. He was sentenced to serve two and one-half years in the state penitentiary at hard labor and prosecuted this appeal from that judgment. The information was exhibited under Section 800.04, Florida Statutes, 1941, which is as follows: “Any person who shall handle, fondle or make an assault upon any child under the age of fourteen years in a lewd, lascivious or indecent maner, or who shall knowingly commit any lewd or l...
CopyCited 41 times | Published | Florida 2nd District Court of Appeal | 2002 WL 80256
...Chapter 2000-155, section 2, at 781, Laws of Florida, removed the word "is" from section 943.1535, Florida Statutes. Chapter 2000-246, section 3, at 2404-06, Laws of Florida, reenacted section
775.082(9) for the purpose of incorporating amendments to section
800.04, contained in section 1 of the chapter....
CopyCited 40 times | Published | Court of Appeals for the Eleventh Circuit | 2010 WL 2382401
...App’x at 553. He was
sentenced to 240 months in prison as an armed career criminal. Id. Harris
achieved that status by being convicted twice for selling cocaine and once for
sexual battery of a child under the age of sixteen in violation of Fla. Stat. §
800.04(3) (1996) (amended 1999).2 Id....
...The government proved all three crimes
“by submitting certified copies of Harris’ convictions, which were based on guilty
pleas.” Id. at 553–54.
One issue we decided in reviewing Harris’ sentence was whether his sexual
battery conviction under Fla. Stat. § 800.04(3) was a violent felony within the
meaning of § 924(e)(2)(B)(i). See id. at 554–56. Harris had been convicted under
the 1996 version of § 800.04(3), which provided:
800.04....
...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 . . . is guilty of a felony of
the second degree . . .
Id. at 555 (quoting Fla. Stat. §
800.04(3) (1990–1996)). That version of the statute
2
The relevant statutory provision has since been rewritten and renumbered. See Fla.
Stat. §
800.04(4) (2008)....
...not do him any good because the district
court concluded that statutory rape is a crime of violence. Id. at 555. We reached
the same conclusion and held that “under this Court’s minimal physical contact
requirement, a violation of Fla. Stat. § 800.04(3) (1996) is a violent felony.” Id....
...The government now concedes that Harris’
sexual battery conviction is not a “violent felony” under § 924(e)(2)(B)(i), and we
accept that concession for purposes of this case.3
Left for us to decide is whether Harris’ conviction under § 800.04(3)
3
The Florida statute on which Harris’ conviction was based could be violated by the
“union with ....
...fore us the government represented
(correctly under the law of the circuit as it then existed) that it was unnecessary for
us to consider that clause. See Br. of Appellee (filed Aug. 20, 2008) at 18
(“Because Harris’s conviction for violating section 800.04(3) falls squarely within
the ambit of 18 U.S.C....
...en “even when the act
was unintentional and the victim factually consented to the act.” Supp. Br. of
Appellant at 12. He points out the possibility of “factual consent” because legal
consent is impossible under the statute. See Fla. Stat. §
800.04 (1996) (“Neither
the victim’s lack of chastity nor the victim’s consent is a defense to the crime
proscribed by this section.”). It makes no difference for conviction purposes if the
perpetrator believes that the victim has in fact “consented.” See Jones v. State,
640
So.2d 1084, 1086 (Fla. 1994) (“The legislature enacted section
800.04 based on a
morally neutral judgment that sexual intercourse with a child under the age of
13
sixteen, with or without consent, is potentially harmful to the child.” (quotation
marks and citation omitted)); cf....
...Chavarriya-Mejia,
367 F.3d 1249,
1251 (11th Cir. 2004) (“Because Kentucky law presumes that underage children
are incapable of consent, statutory rape necessarily involves a sexual act performed
‘against’ the child.”). A person could be convicted of violating Fla. Stat. §
800.04(3) without the actual use of physical force on the victim because the victim
“factually consented.” That alone, however, does not automatically mean that the
crime is outside of the scope of the residual clause. “As long as [a violation of Fla.
Stat. §
800.04(3) is] an offense . . . that, by its nature, presents a serious potential
risk of injury to another” it meets the threshold requirements. James,
550 U.S. at
209,
127 S.Ct. at 1597 (emphasis added). So we must first determine whether the
§
800.04(3) offense meets those requirements.
We have already half-answered that question. In United States v.
Rutherford,
175 F.3d 899 (11th Cir. 1999), we held that a violation of Fla. Stat. §
800.04 “‘involves conduct that presents a serious potential risk of physical injury
to another.’” Id....
...ion, but it involved
language that is the same as that in the residual clause we are applying. Id.
The defendant in Rutherford had been convicted of violating the 1993
14
version of Fla. Stat. § 800.04, which contained a provision identical to the one that
Harris was convicted of violating in 1996....
...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. . . .
Id. at 905 n.3 (quoting Fla. Stat. § 800.04 (1993)).8
The record did not indicate which subsection of § 800.04 Rutherford had
been convicted of violating, but we concluded that it did not matter....
...at 904–05.
We reasoned that the conduct described in all of that statute’s subsections
“involves a substantial risk that physical force may be used against the victim in
the course of committing the offense.” Id. at 905 (quoting Ramsey v. 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)....
...sexual organ of another or the anal or vaginal penetration of another by any other object . . . .”).
15
F.3d 580, 583 (11th Cir. 1995). We held, therefore, that the defendant’s prior
conviction under Fla. Stat. §
800.04 was properly considered a prior conviction for
career offender purposes under U.S.S.G....
...2007) (“Alternatively, and as an independent
basis for our holding, we conclude that second degree rape of a minor, under
Alabama law, at a minimum ‘presents a serious potential risk of physical injury to
another,’ as provided under § 4B1.2(a)(2).”).9 We have already held, then, that an
offense under Fla. Stat. § 800.04 presents a serious risk of physical injury to
another....
...ry’ to the minors under U.S.S.G. §
4B1.2(1)(ii) and has held that the offenses at issue are ‘crimes of violence.’”
(listing cases)). All of this leads us to conclude that sexual battery of a child under
sixteen in violation of Fla. Stat. § 800.04(3) (1996) is a crime that presents a
serious potential risk of physical injury.
3.
That would seem to be the end of the matter, but it is not. We must also
decide if a violation of Fla. Stat. § 800.04(3) (1996) is a crime “roughly similar, in
kind as well as in degree of risk posed” to burglary, arson, extortion, and crimes
involving the use of explosives....
...Picking up on the Begay yarn, Harris weaves the argument that his crime of
sexual battery of a child under the age of sixteen is a strict liability crime with no
mens rea requirement, just like the DUI crime in Begay. The government is unable
to dispute that. See Fla. Stat. §
800.04; State v. Sorakrai,
543 So. 2d 294, 295 (Fla.
2d DCA 1989) (“It is our judgment that conduct violative of section
800.04 carries
with it the same concept of ‘strict liability’ that has traditionally characterized
‘statutory rape.’ Thus, we are persuaded that section
794.021 forecloses [the
defendant] from a defense based upon the victim’s mi...
...the ACCA’s definition of
violent felony.” McDonald,
592 F.3d at 814.
The difficulty in the present case lies in the fact that the Florida statute at
issue covers a wide array of conduct. It is true that, as Harris asserts, Fla. Stat. §
800.04(3) “impose[s] strict liability, criminalizing conduct in respect to which the
offender need not have had any criminal intent at all.” Begay, 553 U.S....
...broad range of conduct, we cannot say that a violation of it typically involves
“purposeful, ‘violent,’ and ‘aggressive’ conduct,” Begay,
553 U.S. at 144–45,
128
S. Ct. at 1586. For that reason, we conclude that a violation of Fla. Stat. §
800.04(3)(1996) generally—without further specifics—is not a crime of violence
under the ACCA’s residual clause....
CopyCited 39 times | Published | Supreme Court of Florida | 2005 WL 609677
...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)....
CopyCited 38 times | Published | Supreme Court of Florida
...in which they may profit or pointlessly project their perfidious pursuit of perplexity. We have dealt with this matter before in Chesebrough, supra , expressly upholding under prior authoritative construction the "lewd and lascivious" terminology of § 800.04 regarding acts in the presence of a minor as not unconstitutionally vague nor void for overbreadth....
CopyCited 38 times | Published | Supreme Court of Florida | 2003 WL 359316
...lea 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. Stat. (1997)) and one count of indecent assault (§
800.04(1), Fla....
CopyCited 37 times | Published | Court of Appeals for the Eleventh Circuit | 2006 U.S. App. LEXIS 13923, 2006 WL 1540261
...meaning leads to absurd results, the ordinary and everyday meaning of the statute
controls”).
We have not had occasion to review the particular California statute under
which Ortiz-Delgado was convicted, but in the context of Florida Statute § 800.04,4
4
The Florida statute we interpreted in Padilla-Reyes provided the following:
Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual
battery....
...me
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.
Fla. Stat. §
800.04 (1987).
9
California statute, also in the § 2L1.2(b)(1)(A)(ii) context....
CopyCited 35 times | Published | Supreme Court of Florida | 2008 WL 150610
...Brueckheimer, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner. Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Krauss, Bureau Chief, and Jonathan P. Hurley, Assistant Attorneys General, Tampa, FL, for Respondent. BELL, J. Is a defendant charged under section 800.04(4), Florida Statutes (2002), with lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age entitled to a jury instruction on simple battery if the information does not allege lack of consent...
...[1] FACTUAL AND PROCEDURAL BACKGROUND The Second District recited these relevant facts: The State charged Khianthalat with nine counts of committing a lewd [or lascivious battery] upon a child twelve years of age or older but less than sixteen years of age under section 800.04(4), Florida Statutes (2002)....
...ere was no evidence at trial that the charged conduct was against her will. In such a circumstance, Khianthalat was not entitled to an instruction on simple battery as a permissive lesser included offense of lewd or lascivious battery under section' 800.04....
...t of simple battery was present because lack of consent is presumed by law in a child of tender years. 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)....
...es under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, §
794.011. Khianthalat's argument that he was entitled to a jury instruction on battery as a permissive lesser-included offense fails because section
800.04(4), the statute under which he was charged, does not apply to children under the age of twelve; accordingly, the presumption of incapacity to consent is not applicable to offenses under that statute. Section
800.04(4) is intended to criminalize sexual activity with children twelve years of age or older but less than sixteen years of age even where the activity is consensual. See Welsh v. State,
850 So.2d 467 (Fla.2003). "The legislature enacted section
800.04 based on a `morally neutral judgment' that sexual intercourse with a child under the age of sixteen, with or without consent, is potentially harmful to the child." Jones v. State,
640 So.2d 1084, 1086 (Fla.1994) (quoting Paris Adult Theatre I v. Slaton,
413 U.S. 49, 69,
93 S.Ct. 2628, 37 LEd.2d 446 (1973)). The fact that section
800.04 eliminates consent as a defense necessarily implies that the sexual activity may be consensual, but nevertheless, the State, as a matter of policy, will ignore the consent because of its legitimate interest in protecting minors from sexual exploitation....
...st the minor victim's will, Khianthalat was not entitled to an instruction on simple battery. Khianthalat,
935 So.2d at 584-86 (footnotes omitted). We agree with this reasoning. *363 CONCLUSION Given the above, we hold that a defendant charged under section
800.04(4), Florida Statutes, with lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age is not entitled to an instruction on simple battery when the information did not allege lack of consent and the evidence presented at trial did not support lack of consent....
CopyCited 34 times | Published | Supreme Court of Florida | 2008 WL 657867
...In light of this statute, we conclude that the error in admitting the child's testimonial statements was not harmless as to Contreras's conviction for capital sexual battery. In contrast, evidence of penetration or union was not required for Contreras's conviction of lewd and lascivious molestation. See § 800.04(1), Fla....
CopyCited 33 times | Published | Supreme Court of Florida
...NOTES [1] The district court's decision conflicts with Kelly v. State,
334 So.2d 128 (Fla.2d DCA 1976), and with King v. State,
320 So.2d 19 (Fla.2d DCA 1975), thereby providing this Court with jurisdiction pursuant to Art. V, § 3(b)(3), Fla. Const. [2] §
800.04, Fla....
CopyCited 33 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21554350
...We grant the petition as it relates to three of the claims raised therein, and we deny, without comment, the remainder of the claims. Gisi was convicted after jury trial of four counts of committing actual intercourse upon a child under the age of sixteen in violation of section
800.04(2), Florida Statutes (1997), eight counts of handling and fondling a child under the age of sixteen in violation of section
800.04(1), Florida Statutes (1997), one count of interference with custody in violation of section
787.03, Florida Statutes (1997), and one count of seduction of a child via computer in violation of section
847.0135(3), Florida Statutes (1997)....
...The testimony at trial established that the victim in this case was a thirteen-year-old girl with whom Gisi had developed a relationship over the computer. He traveled to Florida to spend several days with her, and the sexual activity between the two was consensual. The evidence showed that the violations of section 800.04 were grouped into four sexual episodes with each episode containing three violations of the statute....
...n counts five through twelve (the handling and fondling counts) were prohibited by the constitutional bar against double jeopardy. Gisi relies primarily on Morman v. State,
811 So.2d 714 (Fla. 2d DCA 2002). Morman was convicted of four violations of section
800.04(1)....
...d. at 717. Upon remand, this court ordered the trial court to strike two of Morman's convictions as violative of double jeopardy. *1281 The Morman, court cited State v. Hightower,
509 So.2d 1078 (Fla.1987), for the proposition that "[a]s now worded, section
800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious." Morman,
811 So.2d at 717 (quoting Hightower,
509 So.2d at 1079)....
...The Morman court then concluded that "the statute's focus is on conduct involving sexual activity and not upon the individual acts that comprise lewd and lascivious activity in the same spatial and temporal zone." Id. In the present case, in each of the four episodes, Gisi was charged with violating subsection (2) of section 800.04 and two violations of subsection (1) of the same statute. In Morman, in each of the two episodes Morman was charged with twice violating subsection (1). Thus, with regard to each episode of sexual activity, Gisi, unlike Morman, was charged and convicted of violating two subsections of section 800.04 that each proscribe different acts....
...because there was binding case law in effect at the time the appeal was pending upon which to base the double jeopardy argument." The evidence presented at Gisi's trial clearly supported an argument that eight of Gisi's convictions for violations of section 800.04 were barred by double jeopardy considerations....
...twelve without submitting the issue of victim injury to a jury. Gisi was sentenced to seventy-one years' imprisonment on each of the twelve counts, each of which is a seconddegree felony with a statutory maximum of fifteen years' imprisonment. See §§
800.04,
775.082(3)(c), Fla....
...rgue that the trial court erred in denying his motion for judgment of acquittal on counts three, seven, and eleven of the information. The State charged that on Friday, November 20, 1998, Gisi committed two acts of actual intercourse in violation of section 800.04(2) and four acts of handling and fondling in violation of section 800.04(1)....
CopyCited 32 times | Published | Supreme Court of Florida
...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....
CopyCited 32 times | Published | Supreme Court of Florida | 1951 Fla. LEXIS 1285
...Kelly, Lakeland, for appellant. Richard W. Ervin, Atty. Gen. and Murray Sams, Jr., Asst. Atty. Gen., for appellee. TERRELL, Justice. Appellant was indicted, tried and convicted on a charge of fondling an infant under the age of fourteen years, contrary to Section 800.04, Florida Statutes 1949, F.S.A....
CopyCited 31 times | Published | Supreme Court of Florida | 2007 WL 1362811
...Krauss, Bureau Chief, Tampa Criminal Appeals, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, FL, for Respondent. PARIENTE, J. 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....
...The officer who interviewed him testified that Williams had stab wounds and was bleeding from his left bicep and lower leg. 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)....
...g on prior case law and further relying on the absence of lewd or lascivious battery from the Schedule of Lesser Included Offenses for the crime charged. Over defense objection, the trial court instructed the jury on lewd or lascivious battery under section 800.04(4)(a) as the first lesser included offense of the charged crime, as follows: Before you can find the defendant guilty of lewd or lascivious battery, the State must prove the following two elements beyond a reasonable doubt....
...l force likely to cause serious personal injury. The Second District determined that the information alleged the statutory elements of lewd or lascivious battery and the evidence at trial supported each of the elements: sexual activity as defined in section
800.04 and a victim age twelve to fifteen. Accordingly, the Second District held that the trial court correctly instructed the jury on lewd or lascivious battery as a lesser included offense. Williams,
922 So.2d at 421. However, because "[i]ssues concerning the 1999 amendments to section
800.04 seem to be arising 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). Id. 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)....
...State,
944 So.2d 203, 206 (Fla. 2006) (alteration in original). Although this Court held in State v. Hightower,
509 So.2d 1078 (Fla.1987), that lewd and lascivious conduct is not a lesser included offense of sexual battery, our decision preceded a major revision to section
800.04 in 1999....
...ry." Id. at 1079. In Welsh v. State,
850 So.2d 467 (Fla.2003), we extended this holding to also preclude instruction on lewd or lascivious conduct as a permissive lesser included offense of capital sexual battery. Id. at 468. However, the version of section
800.04 addressed in both Hightower and Welsh provided that lewd or lascivious conduct could only be perpetrated "without committing the crime of sexual battery." §
800.04, Fla....
...In Welsh, the Court explicitly refrained from stating an opinion as to whether, under the 1999 revision, "lewd and lascivious conduct is a necessary or permissive lesser included offense of capital sexual battery."
850 So.2d at 471 n. 5. 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....
...sent, 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. Section
800.04(4)(a) provides that a person who "[e]ngages in sexual activity with a person 12 years of age or older but less than 16 years of age" commits lewd or lascivious battery....
...re 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. Stat. (2002) with §
800.04(1)(a), Fla....
...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)....
...In the information, the State charged both that the defendant committed an act meeting the definition of sexual activity and that the victim was "twelve years of age or older but less than sixteen years of age." These are the two elements of lewd or lascivious battery under section 800.04(4)(a)....
...7 (Fla.1981), "[t]rial courts are charged *600 with the responsibility to determine and properly instruct the jury on the prevailing law." Standard Jury Instructions in Criminal Cases (95-1),
657 So.2d 1152, 1153 (Fla.1995). Second, Williams relied on Hightower and Welsh, which are inapplicable to the 2002 version of section
800.04, and on State v....
...wd or lascivious battery. 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)....
CopyCited 30 times | Published | Court of Appeals for the Eleventh Circuit | 35 Envtl. L. Rep. (Envtl. Law Inst.) 20219, 2005 U.S. App. LEXIS 23501, 2005 WL 2838490
*1357 SHPO. 26 36 C.F:R. § 800.4(d)(1). The agency’s obligations are satisfied if
CopyCited 30 times | Published | Florida 4th District Court of Appeal | 1990 WL 78965
...Butterworth, Atty. Gen., Tallahassee, and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellee. ESQUIROZ, MARGARITA, Associate Judge. Following a non-jury trial, the defendant was convicted of indecent assault on a child under sixteen, pursuant to section 800.04(1), Florida Statutes (1987), and sentenced to fifteen years in the state penitentiary....
...882,
102 L.Ed.2d 1005 (1989); Pieczynski v. State,
516 So.2d 1048, 1051 (Fla. 3d DCA 1987). As defined by the charge in the information, [6] the state was required to prove that the defendant fondled the victim's buttocks with a lewd and lascivious intent, in violation of section
800.04(1), Florida Statutes (1987)....
...he 21st day of September, A.D. 1986, ... did handle, fondle or make an assault upon [the victim], a child under the age of sixteen (16) years in a lewd, lascivious or indecent manner, to-wit: did fondle the buttocks of [the victim]," in violation of section 800.04(1)....
CopyCited 30 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 424
...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). Over the defendant's objection the court instructed the jury that lewd and lascivious conduct as set forth in section
800.04, Florida Statutes (1983), was a lesser included offense....
...State,
464 So.2d 1325 (Fla. 5th DCA 1985); Harrielson v. State,
441 So.2d 691 (Fla. 5th DCA 1983). The state argues, however, that the decision below conflicts with this Court's later opinion in State v. Lanier . In Lanier the defendant was charged under section
800.04 with handling, fondling, or making assault upon a twelve-year-old child by engaging in sexual intercourse, without intent to commit sexual battery. It was undisputed that the child was previously unchaste and that the sexual intercourse was consensual. In reversing the defendant's conviction, the Third District Court of Appeal held that he could not be prosecuted under section
800.04....
...ing. The case was certified to the Supreme Court as passing upon a question of great public importance. In the meantime, in response to the district court of appeal decision in Lanier, the legislature enacted chapter 84-86, Laws of Florida, to amend section 800.04....
...thout regard either to the victim's consent or the victim's prior chastity.... This Court in Lanier relied in large part upon the foregoing legislative statement of intent in reversing the decision of the Third District Court of Appeal. We held that section
800.04 both prior to and subsequent to the 1984 amendment is violated when a male engages in sexual intercourse with a twelve-year-old girl even though the victim was previously unchaste and the sexual intercourse was consensual. The question now before us is whether in Lanier this Court implicitly overruled its decision in Ray. We think not. The 1984 amendment to section
800.04 was passed to eliminate the anomalous interpretation that one could commit the conduct defined as sexual battery upon a person between 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)....
...tery" was included to differentiate between crimes of sexual battery and lewd and lascivious conduct. Had the phrase been excluded, a person having forcible sexual intercourse with a child under sixteen would be guilty of both crimes. As now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive....
...Therefore, the defendant could be convicted of lewd and lascivious conduct which was the crime charged. In the instant case intercourse with a six-year-old child constituted the crime of sexual battery regardless of unchastity or consent. By definition such activity could not be lewd and lascivious conduct under section 800.04 as now worded. If the 1984 amendment to section 800.04 simply served to clarify the law rather than change it, the principle of Ray remains intact....
...*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. §
775.021(4), Fla. Stat. (1983). I agree with the district court below that the charged offense was inadequate to put respondent on notice of jeopardy relative to section
800.04, and, thus, the conviction on the uncharged offense violated due process....
...5th DCA 1986). See Wilcott v. State,
509 So.2d 261 (Fla. 1987), Shaw, J., dissenting. For those reasons, I concur with the majority view that the district court decision should not be disturbed. I do not agree, however, with the majority's treatment of section
800.04, Florida Statutes (1985), as amended by section 5, chapter 84-86, Laws of Florida....
...d lascivious conduct and that, except for the phrase, a person 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)....
...e not separate, then one must be necessarily included in the other 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 my view, if the alleged offense here had occurred after the effective date of chapter 84-86, amending section
800.04, it would have been appropriate to instruct the jury, and to convict, on the lesser included offense of violating section
800.04....
...2141,
57 L.Ed.2d 1 (1978); Greene v. Massey,
437 U.S. 19,
98 S.Ct. 2151,
57 L.Ed.2d 15 (1978); Tibbs v. State,
397 So.2d 1120 (Fla. 1981). 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: ......
...This, of course, is the standard rule for greater and lesser included offenses. In my view, this addition makes explicit the subordinate and subsumed relationship of lewd and lascivious behavior with a child as a necessarily included lesser offense of sexual battery. I would make clear that our ruling here on section 800.04, as it existed in 1983, is not applicable to section 800.04 as it now exists. NOTES [1] At that time section 800.04 read as follows: Lewd, lascivious or indecent assault or act upon or in presence of child....
...775.083 or s.
775.084. [2] Both parties agree that in the instant case lewd and lascivious conduct was not a permissibly included lesser offense (category 2) because the wording of the indictment did not include the statutory elements of an offense under section
800.04. [3] As amended section
800.04 now reads: Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery....
CopyCited 29 times | Published | Supreme Court of Florida | 1991 WL 256876
...N SEXUALLY ACTIVE WITH THE THIRD PERSON? [1] We answer the certified question in the negative and quash the decision below. Petitioner, Cornelius Ray Lewis, was convicted and sentenced for two counts of lewd and lascivious assault upon a child under section 800.04, Florida Statutes (1987), and five counts of sexual activity with a child less than eighteen years of age while standing in a position of familial or custodial authority under section 794.041, Florida Statutes (1987)....
CopyCited 28 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 359, 2016 Fla. LEXIS 1969
...abuse of the victim and the mother were marginally relevant, the probative value of
the testimony would be substantially outweighed by the prejudice it would likely
cause.” Id. at 144. In denying Petitioner’s double jeopardy claim, the First District
1. See § 800.04(5)(c)2, Fla. Stat. (2013), which states, “An offender 18
years of age or older who commits lewd or lascivious molestation against a victim
12 years of age or older but less than 16 years of age commits a felony of the
second degree.” Section 800.04(5)(a) defines lewd or lascivious molestation as
“intentionally touch[ing] in a lewd or lascivious manner the breasts, genitals,
genital area, or buttocks, or the clothing covering them, of a person less than 16
years of age, or forc[...
...Drawdy,
136 So. 3d 1209, 1213 (Fla. 2014).
This Court addressed a similar issue in Meshell, where a defendant was
convicted of two counts of lewd or lascivious battery, in violation of section
-3-
800.04(4), for two acts that occurred during the course of a single criminal episode:
(1) penetrating the victim’s vagina and (2) penetrating the victim’s mouth....
...different elements of proof, such as those proscribed in the sexual battery statute.”
Id. at 135. Therefore, the defendant’s convictions under the lewd or lascivious
battery statute did not violate double jeopardy because “the sex acts proscribed in
section 800.04(4) (oral, anal, or vaginal penetration) are of a separate character and
type requiring different elements of proof and are, therefore, distinct criminal
acts.” Id....
CopyCited 28 times | Published | Court of Appeals for the Eleventh Circuit | 2007 WL 101190
...at 583.
Under the Florida lewd assault statute analyzed in Ramsey, lewd assault on a minor
included any person who “[h]andles, fondles, or assaults any child under the age of
16 years in a lewd, lascivious, or indecent manner . . . without committing the
crime of sexual battery . . . .” Fla. Stat. § 800.04(1) (1993)....
CopyCited 27 times | Published | Supreme Court of Florida | 1995 WL 424183
...Dautel's fourteen-year-old daughter, both the trial court and the district court concluded that Dautel's conviction for gross sexual imposition was analogous to Florida's second-degree felony of lewd and lascivious assault on a child as provided in section 800.04, Florida Statutes (1991)....
...Dautel,
647 So.2d at 240 (Benton, J., concurring and dissenting). Thus, the trial court incorrectly scored Dautel's Ohio conviction as a second-degree felony when it determined that the Ohio crime was analogous to lewd and lascivious assault on a child under section
800.04....
...er persons', judgment or control by administering any drug or intoxicant to the other person, surreptitiously or by force, threat of force, or deception. Ohio Rev. Code Ann. § 2907.05(A)(2) (Baldwin 1986). [3] Dautel argues that the 1983 version of section 800.04, which provides that it is a second-degree felony to commit a lewd or lascivious act on a child under the age of fourteen, is applicable because his Ohio conviction occurred in 1984. Because we find that section 800.04 is not analogous to Ohio's section 2907.05(A)(2), we need not address this issue.
CopyCited 27 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 41, 2009 Fla. LEXIS 250, 2009 WL 137514
...ent. POLSTON, J. Petitioner State of Florida argues that the Fifth District Court of Appeal in Meshell v. State,
980 So.2d 1169 (Fla. 5th DCA 2008), erred in holding that Respondent Joshua Meshell's convictions for lewd and lascivious battery, under section
800.04(4), Florida Statutes (2006), for vaginal penetration or union (Count 1) and for oral sex (Count 3) violated double jeopardy....
...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 1175. [1] Because the Fifth District only had section
800.04(4) at issue before it, and ruled only on that statute, we limit our review to the certified question as it pertains to section
800.04(4), [2] and answer it affirmatively. I. BACKGROUND Over the weekend of December 19-21, 2006, Joshua Meshell, age twenty-three, engaged in various sexual acts with a thirteen-year-old female. The State charged Meshell with five counts of lewd and lascivious battery in violation of section
800.04(4)....
...Significantly, the same sexual acts proscribed in the sexual battery statute are also proscribed in the lewd and lascivious battery statute, under which Meshell was charged. Lewd and lascivious battery is defined as, among other things, "sexual activity with a person 12 years of age or older but less than 16 years of age." § 800.04(4)(a), Fla. Stat. (2006). "Sexual activity," in turn, 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." § 800.04(1)(a), Fla....
...bject.'"). Because the definitions of the proscribed sexual acts are identical, the same double jeopardy analysis for the sexual battery also applies to the lewd and lascivious battery statute. III. CONCLUSION We hold that the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal penetration) are of a separate character and type requiring different elements of proof and are, therefore, distinct criminal acts....
CopyCited 26 times | Published | Supreme Court of Florida | 2001 WL 1095088
...James E. Brake, Jr. was charged by information with violating section
787.025, Florida Statutes (1997). [1] This statute makes it a third-degree felony for a person over eighteen, who previously has been convicted of a violation of chapter 794, [2] section
800.04, [3] or a similar law in another state, to intentionally lure or entice a child under twelve years of age into a structure, dwelling, or conveyance for "other than a lawful purpose." Brake was previously convicted of indecency with a child in Texas, a crime which is similar to that proscribed under Florida's section
800.04....
...The instant case is distinguishable from Sieniarecki. Although Brake clearly falls into the group that the luring statute is intended to cover (persons over eighteen years of age who have previously been convicted of a chapter 794 sexual battery violation or a section 800.04 lewd or lascivious offense), it is not clear that he "has engaged in some conduct clearly proscribed by the plain and ordinary meaning of the statute" as did Sieniarecki....
...together with the curtilage thereof. (c) "Conveyance" means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car. (2)(a) A person over the age of 18 who, having been previously convicted of a violation of chapter 794 or s. 800.04, or a violation of a similar law of another jurisdiction, intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure, dwelling, or conveyance for other than a lawful purpose commits a felony of the third degree, punishable as provided in s....
...for a lawful purpose. (c) The person's actions were reasonable under the circumstances and the defendant did not have any intent to harm the health, safety, or welfare of the child. [2] Chapter 794, Florida Statutes, is entitled sexual battery. [3] Section 800.04, Florida Statutes, proscribes lewd or lascivious offenses committed upon on or in the presence of persons under sixteen years of age.
CopyCited 26 times | Published | Florida 5th District Court of Appeal | 1989 WL 85716
...He lived with his mother, father (Palmer), and stepbrother (B.G.), until 1984. In July of 1984 Palmer sexually abused B.G., who was approximately four years old at the time. Palmer pled guilty to committing a lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (1985)....
CopyCited 25 times | Published | Florida 1st District Court of Appeal
...Gen., for appellee. BOOTH, Judge. This cause is before us on appeal from the final judgment of the Circuit Court, Escambia County, entered on a jury verdict finding defendant guilty of committing a lewd or lascivious act in violation of Florida Statute § 800.04 [1] and sentencing him to fifteen years imprisonment....
...Similar fact evidence has been properly disallowed where its probative value was slight or where its effect was unduly prejudicial. In Knox v. State,
361 So.2d 799 (Fla. 1st DCA 1978), this court correctly reversed a conviction under Florida Statute §
800.04....
...did unlawfully and knowingly commit a lewd or lascivious act on Valerie Cotita, a child of the age of five years, by fondling and/or placing his mouth upon her vagina, but without the intent to commit Involuntary Sexual Battery, in violation of Florida Statute
800.04." [2]
110 So.2d 654 (Fla....
...milarly attacked by defendant properly admitted to "corroborate" testimony of victim; Summit v. State,
285 So.2d 670 (Fla. 3d DCA 1973), prior lewd assaults against both the victim and her sister held properly admitted in trial under Florida Statute §
800.04; Cantrell v....
CopyCited 24 times | Published | Supreme Court of Florida | 1995 WL 382659
...The State appealed, and the district court reversed the circuit court's findings, relying on Jones v. State,
619 So.2d 418 (Fla. 5th DCA 1993), approved,
640 So.2d 1084 (Fla. 1994). The district court certified the above question to this Court. Initially, we note that section
794.05 is materially different from section
800.04, Florida Statutes (1991), [1] which we upheld in Jones v....
...as a delinquent second-degree felon. The State contends that the compelling state interest furthered by this statute is the same as the state interest which we found to be compelling in Jones. However, in Jones we were dealing with a situation where section 800.04 was applied to charge an adult engaged in sexual activity with a minor under the age of sixteen years....
...The legislature might wish to consider whether the cost of defending an archaicly worded statute such as this one is worthwhile. ANSTEAD, J., concurs. GRIMES, Chief Justice, dissenting. In Jones v. State,
640 So.2d 1084 (Fla. 1994), this Court upheld section
800.04, Florida Statutes (1991), which prohibited sexual intercourse with a person under the age of sixteen....
...ot for any other reason. If the statute fails for other reasons, that is a case for another day. In my judgment Jones unequivocally requires us to answer the certified question in the negative. I can find no legitimate basis to go further. NOTES [1] Section 800.04, Florida Statutes (1991): 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 actual or simulated sexual intercourse, deviate sexual i...
...[2] A variety of other criminal statutes might apply, however, depending on the facts of the case. I also must note that, while Chief Justice Grimes correctly quotes my concurrence in Jones, the two statutes he compares differ in a crucial respect: Section
794.05 requires that the child be chaste whereas section
800.04 does not. Indeed, the latter statute states in pertinent part: Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed [statutory rape]. §
800.04, Fla....
CopyCited 24 times | Published | Florida 1st District Court of Appeal | 2017 WL 2374401, 2017 Fla. App. LEXIS 7886
...The distinct acts of solicitation and the times they occurred will be more fully described in the following section. . Lewd or lascivious battery is defined as "engaging in sexual activity with a person 12 years of age or older but less than 16 years of age.” § 800.04(4)(a)l., Fla Stat....
...For the purposes of this statute, sexual activity 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 other object; however, sexual activity does not include an act done for a bona fide medical purpose." § 800.04(l)(a), Fla....
...Lewd or lascivious molestation occurs when: "A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator .... ” § 800.04(5)(a), Fla....
CopyCited 23 times | Published | Florida 2nd District Court of Appeal | 2004 WL 2069811
...346,
102 L.Ed.2d 300 (1988). Because we conclude that the summary denial of that ground raised by Carpenter was erroneous, we reverse. Carpenter was convicted of two counts of a lewd and lascivious act on a child under the age of sixteen in violation of section
800.04, Florida Statutes (1997). He was sentenced to two concurrent prison terms of fifteen years. These sentences were for the statutory maximum applicable to Carpenter's second-degree felony offenses. See §§
800.04(6)(b),
775.082(3)(c), Fla....
CopyCited 23 times | Published | Court of Appeals for the Eleventh Circuit | 2014 WL 2808132, 2014 U.S. App. LEXIS 11730, 24 Fla. L. Weekly Fed. C 1487
...06/23/2014 Page: 5 of 11
perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a
purpose associated with sexual gratification.”
247 F.3d 1158, 1163 (11th Cir.
2001). Based on that definition, we held that Fla. Stat. §
800.04 (1987), which
proscribed “[l]ewd, lascivious, or indecent assault or act[s] upon or in presence of
child; sexual battery,” constituted “sexual abuse of a minor” and triggered the 16-
level enhancement under § 2L1.2(b)(1)(A)....
CopyCited 23 times | Published | Florida 1st District Court of Appeal | 1999 WL 594179
...Wright properly relies on May,
721 So.2d at 741, to support reversal of his sentence. Although the crime of which May was convicted is different, the facts and reasoning in May bear close consideration. May was found guilty of committing a lewd or lascivious act upon a child under age 16, a violation of section
800.04, Florida Statutes (1997)....
CopyCited 21 times | Published | Court of Appeals for the Eleventh Circuit | 2011 U.S. App. LEXIS 14239, 2011 WL 2684908
...The complication involved in formulating a generic definition of
“sexual abuse of a minor” based on definitions from the states’ statutes and other sources would
prove overwhelming, if not an impossibly inaccurate process.
9
In applying the Padilla-Reyes definition to a case involving Fla. Stat. § 800.04(1), the
Court recently noted that “Padilla-Reyes may not have fully defined the contours of the generic
offense of ‘sexual abuse of a minor’ to the extent necessary to resolve cases involving offenses
under [statutes other than the Florida statute].” United States v....
CopyCited 21 times | Published | Florida 2nd District Court of Appeal | 1994 WL 440449
...Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee. RYDER, Acting Chief Judge. Peter Anthony Audano seeks review of his conviction for three counts of committing a lewd and lascivious act upon a child under sixteen years of age in violation of section
800.04(3), Florida Statutes (1991), by committing an act defined as sexual battery under section
794.011(1)(h), Florida Statutes (1991), and one count of committing a lewd and lascivious act upon a child under sixteen years of age in violation of section
800.04(1), Florida Statutes (1991)....
CopyCited 20 times | Published | Florida 2nd District Court of Appeal | 1992 WL 213150
...that would not be injurious under the new Karchesky standard. Returning to the three cases presently before us, the dispositive facts are as follows: (1) Morris v. State. Silas Morris entered a plea of nolo contendere to lewd assault, a violation of section 800.04, Florida Statutes....
...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. Stat. (1991), attempted sexual battery, and lewd assault, §
800.04(1), Fla. Stat. (1991). [4] The underlying offense is also lewd assault. §
800.04, Fla....
CopyCited 20 times | Published | Florida 5th District Court of Appeal
...There is no judicial duty more grave or important. In Ray v. State,
403 So.2d 956 (Fla. 1981), Ray was charged with sexual battery, a violation of section
794.011(5), Florida Statutes (1981). The jury was instructed that a lewd and lascivious act, as prohibited under section
800.04, Florida Statutes (1981), was a lesser included offense of, and a jury verdict alternative to a conviction for, the charged offense of sexual battery....
...n Ray. Justice McDonald carefully pointed out that the lewd act offense in Ray was not a "lesser" included offense of the charged sexual battery offense for two reasons, viz: (1) "because the information did not contain all the elements specified in section
800.04,"
403 So.2d at 959, and (2) because both offenses were second degree felonies....
CopyCited 20 times | Published | Supreme Court of Florida
...See F.A.R., Rule 3.10(e), 32 F.S.A. In a criminal information, the State alleged that the defendant, an adult male, "did handle, fondle or make an assault upon a male child under the age of fourteen (14) years ... in a lewd, lascivious or indecent manner" contrary to Fla. Stat. § 800.04, F.S.A....
CopyCited 20 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1905897
...s orders by a prior unpublished order. We issue this opinion to explain our ruling. THE PROCEEDINGS IN THE CIRCUIT COURT Mr. Bloom, who is an adult, was charged with committing the offense of lewd or lascivious molestation on a child, a violation of section 800.04(5), Florida Statutes....
...On November 18, 2003, the circuit court entered an order that made the following findings of fact: 1. The communications between Joseph Nussbaumer and Defendant took place within a psychotherapist-patient relationship. In light of the fact that Defendant is charged with lewd molestation (pursuant to [section
800.04]), [section
39.204, Florida Statutes (2003)] abrogates the psychotherapist-patient privilege which was enacted pursuant to [section]
90.503....
...Based on our limited record, we assume for purposes of this review that the alleged victim in this case is an unmarried person under the age of eighteen years who has not been emancipated by order of the court. Mr. Bloom is charged with the offense of lewd or lascivious molestation against a child in violation of section 800.04(5), an offense that qualifies as *1073 "abuse" under chapter 39....
...In accordance with the title of section
90.505, we will refer to the privilege as the "clergy communications" privilege. We will refer to a person who consults a member of the clergy as "the confider." [2] The date of the offense is not apparent from the face of the record. However, section
800.04(5) has not been the subject of recent amendments, and its terms are not material to the resolution of this case....
CopyCited 19 times | Published | Florida 5th District Court of Appeal | 2004 WL 2254537
...tive intent to require two separate punishments analysis ends and we do not resort to the Blockburger test. In accordance with Cruller, we begin our search for clear legislative intent by examining the language, structure, and legislative history of section 800.04....
CopyCited 19 times | Published | Supreme Court of Florida | 1992 WL 318435
...4th DCA 1991), in which the Fourth District Court of Appeal certified the following question to be of great public importance: DOES THE STATE HAVE TO PROVE THAT THE VICTIM SAW OR SENSED THE LEWD OR LASCIVIOUS ACT IN THE PROSECUTION OF A DEFENDANT CHARGED UNDER SECTION 800.04(3), FLORIDA STATUTES (1987)? *586 We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution, and we answer the question in the affirmative....
...After half an hour, the wife knocked on the locked bathroom door. When Werner unlocked the door, the wife found the child sitting on the bathroom floor. Werner told his wife that he had been masturbating while caring for the child. The State charged Werner with violating section 800.04(3), Florida Statutes (1987)....
...This statute provides in pertinent part that any person who "[k]nowingly 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." § 800.04(3), Fla....
...The trial court also ordered Werner to submit to counseling and have no contact with the child until completion of counseling, recommendation of the counselor, and a full hearing before the court. The Fourth District Court of Appeal found that a violation of section 800.04(3) cannot occur unless a child sees or senses that a lewd or lascivious act is occurring, although the child's perception does not have to include comprehension of the nature of the act....
...Concluding that the jury had insufficient evidence to convict Werner, the district court reversed Werner's conviction and vacated the sentence. Id. at 435. The question presented to this Court is one of statutory interpretation, determining the meaning of "presence" as used in section 800.04(3)....
...Florida Rule of Criminal Procedure 3.830 also provides that direct criminal contempt "may be punished summarily if the court saw or heard the conduct constituting contempt committed in the actual presence of the court." (Emphasis added). Applying the legal as well as the common-sense meaning of the word "presence" to section 800.04(3), leads us to the conclusion that, while the child need not be able to articulate or even comprehend what the offender is doing, the child must see or sense that a lewd or lascivious act is taking place for a violation to occur. Even if we determined that the language of section 800.04(3) is ambiguous, the result would be the same....
..."[W]hen the language [of a criminal statute] is susceptible of differing constructions, it shall be construed most favorably to the accused." §
775.021(1), Fla. Stat. (1987). Based upon this statutory rule of construction, any doubt as to the meaning of "presence" in section
800.04(3) would have to be resolved in Werner's favor....
..., the Guardian Ad Litem Program for the Eleventh Judicial Circuit and the Family Law Section of The Florida Bar argue that any construction of "presence" which requires sensory awareness by the child is contrary to the legislative intent in enacting section 800.04(3). The amici contend that the purpose of section 800.04(3) is to prohibit adults from using children, either actively or passively, as stimulants for the adult's sexual activity. The amici's analysis focuses upon the intent and the act of the perpetrator, without regard to the child's awareness of the act. However, we find that the preamble to the act amending section 800.04, clearly expresses a legislative focus upon preventing harm to the child....
CopyCited 19 times | Published | Florida 2nd District Court of Appeal | 1989 WL 41177
...Petersburg, for respondent. FRANK, Acting Chief Judge. The state has petitioned for a writ of certiorari challenging two non-final orders entered by the trial court in the current prosecution of Sorakrai for lewd and lascivious conduct alleged to be violative of section 800.04(2), Florida Statutes (1987)....
...Sorakrai, a musician, was employed, that she drank *295 alcoholic beverages, and that she "walks, talks, [and] looks older" than her true age. During our consideration of this matter, it did not escape our attention that the trial court, in spite of section 800.04's interdiction of unchastity and consent as defenses to the crimes proscribed in that section, has approved the admissibility of evidence of consent as a part of Sorakrai's defense....
...at the partner in the sexual event is sixteen or beyond that age. 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)....
...act was accompanied by criminal intent." State v. Medlin,
273 So.2d 394, 396 (Fla. 1973). 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, th...
...im's being below a certain 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). It is manifest from the result reached in State v. Lanier,
464 So.2d 1192 (Fla. 1985), that the supreme court perceived sexual intercourse with an underage female, condemned in section
800.04, to be criminal behavior notwithstanding the absence of chastity and the presence of consent. It is our judgment that conduct violative of section
800.04 carries with it the same concept of "strict liability" that has traditionally characterized "statutory rape." Simmons....
CopyCited 18 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21115618
...hrough efforts of a computer forensics expert is sufficient evidence to sustain a conviction for possession of child pornography. Affirmed in part, reversed in part, and remanded for resentencing. ALTENBERND, C.J., and WHATLEY, J., Concur. NOTES [1] § 800.04(6), Fla....
CopyCited 18 times | Published | Florida 2nd District Court of Appeal
...Gen., Tallahassee, and David Luther Woodward, Asst. Atty. Gen., Tampa, for appellee. McNULTY, Judge. Appellant, a 64 year old man, was tried and convicted of committing a sexual assault upon his 13 year old adopted daughter by fondling her in a certain lewd and lascivious manner as proscribed by § 800.04, F.S....
CopyCited 18 times | Published | Florida 4th District Court of Appeal | 1990 WL 78966
...During the same time frame ... the father utilized the same VHS camera to record the juvenile victim swimming in the nude. Based upon this activity, the affidavit alleged violations of section
827.071, Florida Statutes (1987), sexual performance of a child; section
800.04, lewd or lascivious acts or indecent assault or act upon or in the presence of a child; section
827.04, child abuse; and chapter 847, obscene literature or profanity....
CopyCited 18 times | Published | Florida 2nd District Court of Appeal
...Weidemeyer of Wightman, Rowe, Weidemeyer, Jones & Turnbull, Clearwater, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee. OTT, Judge. The appellant was convicted of a violation of Section 800.04, Florida Statutes specifically a lewd and lascivious act in the presence of a child under the age of 14 years....
CopyCited 17 times | Published | Supreme Court of Florida | 2003 WL 21355197
...State,
816 So.2d 175 (Fla. 1st DCA 2002), which certified conflict with the decisions in Velazquez v. State,
648 So.2d 302 (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)....
...794.011(2)(a), Florida Statutes. [3] Welsh was also charged with lewd and lascivious assault of the victim by touching her breasts or vagina or both on occasions separate from the occasions underlying the charge of sexual battery in contravention of section 800.04(1), Florida Statutes....
...e 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. The allegations clearly comply with the definition of sexual battery.... In defining the offense of a lewd and lascivious act, section 800.04, Florida Statutes (1997), has, by specifically excluding sexual battery as a means of perpetrating such act, removed sexual battery as an element involved in the commission of a lewd and lascivious act....
...In Welsh, the First District relied on Hightower, in which the issue was whether lewd and lascivious conduct was a necessarily lesser included offense of capital sexual battery. In rejecting this argument in Hightower, we construed the statutory language of section 800.04(1): [I]t is evident that the phrase "without committing the crime of sexual battery" was included to differentiate between crimes of sexual battery and lewd and lascivious conduct. Had the phrase been excluded, a person having forcible sexual intercourse with a child under sixteen would be guilty of both crimes. As now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive....
...After careful consideration, we adopt the opinion of the First District Court of Appeal in this case and approve Welsh. We also disapprove those statements in King and Velazquez which indicate that a defendant is entitled to an instruction on lewd and lascivious conduct pursuant to section 800.04 as a permissive lesser included offense of capital sexual battery....
...A permissive lesser included offense may or may not be included in the charged offense depending on the pleadings and the evidence. See Amado v. State,
585 So.2d 282, 282 (Fla. 1991). The Court in Hightower based its holding on the statutory language of section
800.04, Florida Statutes (1983), specifically the inclusion of the phrase "without committing the crime of sexual battery," to conclude that lewd and lascivious conduct was not a necessarily included lesser offense of capital sexual battery....
...However, if we were not *472 bound by this Court's precedent in Hightower, I would adopt Justice Shaw's well-reasoned opinion concurring in result only in that case, in which he stated that the inclusion of the phrase "without committing the crime of sexual battery" actually supported the conclusion that section 800.04 was a necessarily included lesser offense of capital sexual battery....
...e not separate, then one must be necessarily included in the other 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....
...Justice Shaw further noted that treating lewd and lascivious conduct and sexual battery as two separate offenses had the "undesirable consequences" of permitting either dual convictions or multiple prosecutions for the same act. See id. In Justice Shaw's view, subsection (2) of section 800.04 simply meant that any defendant who has sexual relations with a child under age sixteen is guilty of lewd and lascivious conduct....
...[T]his addition makes explicit the subordinate and subsumed relationship of lewd and lascivious behavior with a child as a necessarily included offense of sexual battery. Id. at 1081. This interpretation is logical to me. This interpretation is also consistent with the history of section
800.04. Notably, in State v. Lanier,
464 So.2d 1192 (Fla.1985), this Court considered whether a defendant could be convicted of a violation of section
800.04, Florida Statutes (1981), "by engaging in sexual intercourse" with a consenting and previously unchaste twelve-year-old girl. Id. at 1193. At the time of the defendant's conviction in Lanier, section
800.04 read as follows: Lewd, lascivious or indecent assault or act upon or in presence of child.Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious, or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of a such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree.... §
800.04, Fla....
...3d DCA 1983), but this Court quashed the district court's decision. See Lanier,
464 So.2d at 1193. This Court noted that shortly after the Third District reversed the defendant's conviction, the Legislature passed chapter 84-86, Laws of Florida, amending section
800.04 "to specifically cover the acts" committed by the defendant in Lanier. Lanier,
464 So.2d at 1193. 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....
...hild under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree.... Neither the victim's lack of chastity nor the victim's lack of consent is a defense to the crime proscribed by this section. § 800.04, Fla....
...pon a minor and in specific response to the Third District's contrary holding in Lanier. See Hightower,
509 So.2d at 1079. Thus, there is simply nothing in the history of the addition of the phrase "without committing the crime of sexual battery" to section
800.04 which indicates that the Legislature intended to exclude lewd and lascivious conduct as a necessarily included offense of capital sexual battery....
...2d DCA 1995), the defendant was charged with two separate counts of both sexual battery and lewd and lascivious conduct based on the same two encounters.
648 So.2d at 837. The lewd and lascivious counts alleged that the defendant placed his exposed penis between the legs of the victim in violation of section
800.04(1), and the sexual battery counts alleged that the defendant penetrated the victim....
...(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. Stat. (1997). [4] Section
800.04 entitled "Lewd, lascivious, or indecent assault or act upon or in the presence of child," provides: A person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; (2) Comm...
...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....
...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. Currently, the pertinent sections of the statute read: 800.04 Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age. (1) DEFINITIONS.As used in this section: (a) "Sexual activity" means the oral, anal, or vaginal penetration by, or union with, the sexual o...
...h the perpetrator, commits lewd and lascivious molestation. .... (6) LEWD OR LASCIVIOUS CONDUCT. (a) A person who: 1. Intentionally touches a person under 16 years of age in a lewd and lascivious manner.... .... commits lewd or lascivious conduct. § 800.04, Fla....
...[7] Judge Zehmer made this point in dissent in O'Bright v. State,
508 So.2d 385 (Fla. 1st DCA 1987), when he stated: But in view of the legislature's forceful expression in the preamble to chapter 84-86 of its intent to include within the ambit of
800.04 offenses acts amounting to sexual 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).... Id. at 389 (Zehmer, J., dissenting). The history of section
800.04 is described in great detail in Judge Zehmer's dissent in this case....
CopyCited 17 times | Published | Florida 1st District Court of Appeal
...*37 Michael Allen, Public Defender, and Andrew Thomas, Asst. Public Defender, for appellant. Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee. NIMMONS, Judge. Williams was convicted of lewd, lascivious or indecent assault upon a child less than 14 years of age under Section 800.04, Florida Statutes (1983)....
CopyCited 17 times | Published | Court of Appeals for the Eleventh Circuit | 2009 U.S. App. LEXIS 18749, 2009 WL 2527296
... not a citizen or a national of the United States; (2) he was admitted to the United
States in March 1989 as an immigrant; and (3) in 1995, he was convicted in a
Florida court of committing a lewd act upon a child under the age of sixteen in
violation of Florida Statute § 800.04(3)....
CopyCited 16 times | Published | Florida 5th District Court of Appeal | 1998 WL 412453
ORFINGER, M., Senior Judge, concur. NOTES [1] § 800.4(2) and (3), Fla. Stat. (1995). [2] See Perkins
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1303
...Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee. LEHAN, Judge. We affirm the conviction of this male defendant for committing a lewd and lascivious act in the presence of a female child under the age of fourteen years, a violation of section 800.04, Florida Statutes (1984)....
...The term "imports more than a negligent disregard of the decent proprieties and consideration due to others." McKinley v. State, 33 Okla. Cr. 434, 244 P. 208 (1926), cited by the Florida Supreme Court in Chesebrough for the foregoing general, usual meaning. As indicated in Chesebrough, which declared section 800.04 constitutional, the legislature has not defined "lewd and lascivious," and it is for the judiciary to apply those words based upon common understanding of them....
...ns, Duvallon v. State,
404 So.2d 196 (Fla. 1st DCA 1981). Those cases were decided under section
800.03 which prohibits indecent exposure. However, the element of lewdness and lasciviousness has been determined to exist under both section
800.03 and
800.04....
...State, supra , which involved fondling and attempted sexual intercourse with a child under thirteen years of age. Defendant contends that his mere nudity, which was not shown to have been accompanied by gestures or words, cannot be found to be in violation of section 800.04....
...The lewd and lascivious interest of a defendant can be imputed from the circumstances. Boles v. State,
27 So.2d at 294. Thus, the jury could reasonably have concluded from all the evidence in this case that defendant's behavior was motivated not by any legitimate reason but by the illicit intent required under section
800.04....
...n addition to his nakedness offer sufficient indicia of "wicked, lustful, unchaste, licentious or sensual design," Chesebrough,
255 So.2d at 677, from which the jury could conclude that the appellant's conduct was lewd and lascivious in violation of section
800.04, Florida Statutes....
...The determination of whether the accused engaged in the act charged by the information is a matter for the jury. State v. Mayo,
155 Fla. 330,
19 So.2d 883 (1944). The threshold question, however, is whether the appellant's behavior was lewd and lascivious within the meaning of section *200
800.04, Florida Statutes....
...to purchase the cookies. Although the appellant's naked presence at his front door is at the very least unorthodox and certainly condemnable when gauged by customary social standards, it does not as a matter of law equate with behavior proscribed by section 800.04....
CopyCited 15 times | Published | Florida 5th District Court of Appeal | 1989 WL 22563
...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. Stat. (1987). [2] §
800.04(1), Fla....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 1999 WL 445705
...It was necessary in this case because of the confusion created by the State during the trial. We decline to reach the remaining issues because they may not reoccur during any new trial. Reversed and remanded for new trial. GREEN and SALCINES, JJ., Concur. NOTES [1] See § 800.04(1), Fla....
CopyCited 15 times | Published | Florida 5th District Court of Appeal | 2004 WL 40521
...uld have to comply with these requirements; and 3) he expressed a willingness *514 to undertake another attempt at compliance. We affirm. Woodson was originally charged with lewd and lascivious battery and lewd and lascivious conduct in violation of section 800.04, Florida Statutes....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal
...ealing with the same subject and providing a different penalty. 1A Sutherland Statutory Construction, Section 23.26 (C. Sands 4th rev. ed. 1972). See Adams v. Culver, supra . In Adams a defendant sought habeas corpus to overturn his conviction under Section 800.04, Florida Statutes (1957), prohibiting lewd and lascivious conduct in the presence of a minor under fourteen years of age....
...Based on the principles of statutory construction previously mentioned, the Supreme Court of Florida held the pornographic-picture statute alone was applicable. Justice Roberts, writing for the court, said: Assuming, arguendo, that this is a "lewd or lascivious act" clearly within the intendment of § 800.04, cf....
CopyCited 15 times | Published | Florida 5th District Court of Appeal | 2007 WL 485988
...Swann, III, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, J. Bertram L. Capron appeals his convictions of two counts of lewd and lascivious battery (section 800.04(4)(a), Florida Statutes (2004)), one count of lewd and lascivious conduct (section 800.04(6)(b)), one count of lewd and lascivious molestation (section 800.04(5)(c)(2)), and one count of lewd and lascivious exhibition (section 800.04(7)(c)), as a result of the State charging him with having sexual activity with M.W., a fifteen-year-old girl....
...offenses arising from the same criminal transaction is whether the Legislature `intended to authorize separate punishments for the two crimes.'" Gordon v. State,
780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State,
682 So.2d 79, 81 (Fla.1996)). *958 Section
800.04 contains no clear statement of legislative intent....
...where the same victim was involved, the attack occurred solely in one location, and there was no meaningful temporal break in the episode). Mr. Capron was charged in count II with lewd and lascivious battery by kissing M.W.'s vagina in violation of section 800.04(4)(a), in count III with lewd and lascivious conduct by kissing her anus in violation of section 800.04(6)(a), and in count I with lewd and lascivious battery by touching her genital area with his penis in violation of section 800.04(4)(a)....
...could not be said that defendant paused, reflected, and formed a new criminal intent each time he touched alleged victim during the sexual encounter). Further, in order for multiple convictions to be permitted under subsections (4)(a) and (6)(a) of section
800.04, pursuant to section
775.021(4)(a), i.e., the "same elements" *960 test, each offense is considered 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." §
775.021(4)(a), Fla. Stat. (2004). Recently, in Paul, the supreme court applied the same elements test to lewd and lascivious molestation and lewd or lascivious conduct, and concluded that the offenses contained the same elements. The court reasoned: [S]ection
800.04(6)(a)(1) defines "lewd or lascivious conduct" as any intentional touching of "a person under 16 years of age in a lewd or lascivious manner," while section
800.04(5)(a) defines "lewd or lascivious molestation" as the intentional touching "in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator." §
800.04, Fla....
...n 12 years of age or older but less than 16 years of age" or "[e]ncourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity." See § 800.04(4), Fla. Stat. (2004). The statute defines "sexual activity" 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." § 800.04(1)(a), Fla....
...State,
912 So.2d 63 (Fla. 4th DCA 2005) (upholding defendant's convictions for sexual battery and lewd and lascivious molestation). In summary, we conclude that three criminal episodes occurred. Mr. Capron cannot be convicted of both a violation of section
800.04(4)(a) and section
800.04(6)(a), for the acts which occurred as part of the same criminal episode on Friday evening. However, he can be convicted of lewd and lascivious molestation in violation of
800.04(5)(a) since this was part of a separate criminal episode on Friday evening. Likewise, the lewd and lascivious exhibition in violation of section
800.04(7) that occurred on Saturday evening was also entirely a separate event....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2372723
...d remand with directions for the circuit court to grant the motion as a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). *231 Mr. King was charged in November 2000 with lewd molestation pursuant to section 800.04(5)(a), Florida Statutes (2000)....
...This offense was a first-degree felony and upon conviction would have required the trial court to designate Mr. King as a sexual predator. See §§
775.21(4)(a)(1)(a),
775.21(5), Fla. Stat. (2000). However, on November 13, 2001, Mr. King pleaded no contest to a reduced charge of lewd and lascivious battery in violation of section
800.04(4)....
CopyCited 14 times | Published | Supreme Court of Florida | 2007 WL 2727127
...As we explain below, we hold that the age of the defendant is an element of the crime. Because we find that Insko waived the issue, however, we approve of the Second District's affirmance of the judgment in this case. I. STATEMENT OF FACTS AND PROCEDURE Insko was charged with lewd or lascivious conduct, in violation of section 800.04(6)(a)(2) and (b), Florida Statutes (2001)....
...d at 682-83. The court certified the following question as one of great public importance: "In light of the ruling in Glover v. State,
863 So.2d 236 (Fla.2003), is the age of the offender an element of the offense of lewd or lascivious conduct under section
800.04(6), Florida Statutes?" Below, we first consider the certified question....
...."), cert. denied, ___ U.S. ___,
127 S.Ct. 1268,
167 L.Ed.2d 92 (2007). The question asks, "In light of the ruling in Glover v. State,
863 So.2d 236 (Fla.2003), is the age of the offender an element of the offense of lewd or lascivious conduct under section
800.04(6), Florida Statutes?" In other words, is the age of the offender a fact essential to the specific statutory offense? We first review the statute, and then compare it to the one we considered in Glover....
...shable as provided in s.
775.082, s.
775.083, or s.
775.084. (c) An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree, *998 punishable as provided in s.
775.082, s.
775.083, or s.
775.084. §
800.04(6), Fla....
...ation rather than an element of the offense itself." Insko II,
933 So.2d at 681. Our examination of the statute, however, leads us to the opposite conclusion. We begin with paragraph (6)(a) of the statute, which defines "lewd or lascivious conduct." §
800.04(6)(a), Fla....
...§
790.161(1). Standing alone, the definition "merely describe[s] some obnoxious behavior, leaving any reader assuming that it must be a crime, but never being actually told that it is." Jones,
526 U.S. at 233,
119 S.Ct. 1215. Paragraphs (6)(b) and (c) of section
800.04 fill in the missing terms....
...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. The State contends that, in contrast, section
800.04(6) (that is, paragraphs (a), (b), and (c)) itself defines lewd or lascivious conduct and provides the punishment depending on the defendant's age....
...or lascivious conduct is always a crime; the age of the defendant determines only the degree of the offense. While we understand the distinction, we disagree that it makes the defendant's age a sentencing factor instead of an element of the offense. Section 800.04(6) is similar to the statute we considered in Glover: one paragraph defines the offense, while others make the conduct a crime and establish the degree of the crime. As we explained above, the definition of lewd or lascivious conduct does not make such conduct a crime. See § 800.04(6)(a), Fla....
...Comparing these statutes, other Florida courts have concluded that the age of the defendant is an element of lewd or lascivious conduct. In State v. D.A.,
939 So.2d 149 (Fla. 5th DCA 2006), the Fifth District considered the question in the context of the lewd or lascivious molestation statute. See §
800.04(5), Fla. Stat. (2001). Section
800.04(5) is structured similarly to subsection (6)....
...Paragraph (5)(a) describes the conduct of lewd or lascivious molestation and paragraphs (b), (c), and (d) criminalize the conduct and ascribe the classification and degree of the offense based on both the offender's age and the victim's age. Before our decision in Glover, the Fourth District had considered section 800.04(5) and held that the age of the offender was a sentencing factor....
...that we are compelled by Glover to conclude that the age of the defendant is also an element of the crime of lewd or lascivious molestation. D.A.,
939 So.2d at 152-53. [2] The State's contention that the age of the defendant is not an element in subsection
800.04(6) fails to recognize the integral role the fact plays in defining the crime....
...Harris,
356 So.2d 315, 316 (Fla.1978) (stating that the statute's requirement of prior petit larceny convictions was an element of the offense raising the offense level from a second-degree misdemeanor to a third-degree felony). *1001 The statute in this case is similar. That is, the age of the defendant under section
800.04(6) is necessary to the provision criminalizing the conduct and ascribing the degree of the crime....
...it determines the statutory maximum of the offense. The fact of the defendant's age functions this same way in the sexual battery statute. Accordingly, we hold that the defendant's age is an element of the offense of lewd or lascivious conduct under section 800.04(6), Florida Statutes (2001)....
...Accordingly, Insko was required to object to preserve the error and, having failed to do so, waived it. V. CONCLUSION In light of the foregoing, we hold that the age of the defendant is an element of the offense of lewd or lascivious conduct under section 800.04(6)....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 1999 WL 770614
...took overt steps to attain his goal. The fact that the boy did not exist does not belie Mr. Hudson's intent, nor undermine the propriety of the trial court's denial of his motions. Affirmed. PATTERSON, C.J., and CASANUEVA, J., Concur. NOTES [1] See § 800.04(3), Fla....
CopyCited 14 times | Published | Supreme Court of Florida
...(Emphasis supplied.) I see no reason to differentiate between a plea of guilty and a plea of nolo contendere for the purpose of deciding whether a defendant has waived his right to attack the sufficiency of the accusatory writ. In Chesebrough v. State, supra, we allowed the defendants to contest the validity of Section F.S. 800.04, F.S.A....
CopyCited 14 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 1338
...NOTES [1] The supreme court amended the sentencing guidelines, Florida Rule of Criminal Procedure 3.701, effective July 1, 1984. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988-Sentencing Guidelines),
451 So.2d 824 (Fla. 1984). [2] Fla.R.Crim.P. 3.701(d)(11). [3] Section
800.04, Florida Statutes (1983) provides: Any person who shall handle, fondle or make an assault upon any child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act...
CopyCited 14 times | Published | Supreme Court of Florida | 2001 WL 521307
...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)....
...icitly involving violence or the threat of violence. Accordingly, we find no error with the trial court's instruction to the jury as to this offense. However, the trial court also found that lewd assault on a child was a prior violent felony per se. Section 800.04(1), Florida Statutes (1993), states that it is a crime for a person to handle, fondle, or assault any child under the age of sixteen years in a lewd, lascivious, or indecent manner....
CopyCited 14 times | Published | Florida 5th District Court of Appeal | 1999 WL 147321
...As to counts two and five, the state charged that Zwick: did then and there commit DEVIANT SEXUAL INTERCOURSE, MASTURBATION upon a child, [THE VICTIM] who was then under the age of sixteen (16) years by RUBBING HIS PENIS ON [THE VICTIM'S] BUTTOCKS contrary to section 800.04(2)....
...tim]. Counts three and four alleged that Zwick: did then and there force or entice a child, [THE VICTIM] who was then under the age of sixteen (16) years, to commit MASTURBATION by MAKING [THE VICTIM] TOUCH, RUB HIS PENIS, MASTURBATE HIM contrary to section 800.04(2)....
CopyCited 14 times | Published | Florida 5th District Court of Appeal | 1993 WL 186548
...Public Defender, Ocala, for appellees in No. 92-1876. David A. Henson of Kirkconnell, Lindsey & Snure, Winter Park, for amicus FACDL in No. 92-1876. HARRIS, Judge. We have for review the companion appeals in the cases of State v. Erik Rodriguez and Steven Williams (No. 92-1876) in which section 800.04, Florida Statutes (1991) was held unconstitutional and Quarry Jones v....
...on for violating it. ISSUE The issue involved in these companion cases is whether the expansive constitutional right of privacy of minors our supreme court announced in In re T.W.,
551 So.2d 1186 (Fla. 1989), renders unconstitutional that portion of section
800.04, which provides that consent is not a defense to a prosecution for sexual activity with a minor under sixteen....
...But this, in the first analysis, is the legislature's prerogative. Because we believe that the minor's right to consensual sex is not substantially burdened by requiring a delayed exercise of such right (similar to voting, drinking and driving), we uphold the constitutionality of section 800.04....
...SHARP, J., concurs specially in result, with opinion. COBB, Judge, concurring specially. Despite the expansive language employed by the majority opinion in In re T.W.,
551 So.2d 1186 (Fla. 1989), I do not believe that the Florida Supreme Court intended to invalidate section
800.04, Florida Statutes....
...SHARP, Judge, concurring specially, Since the majority opinion finds the defendants have standing to raise the underage persons' claimed constitutional privacy rights, I concur that the issue of whether In re T.W.,
551 So.2d 1186 (Fla. 1989) invalidates prosecutions of persons pursuant to section
800.04, should be certified to the Florida Supreme Court as a question of great public importance....
...ge of twelve, for which consent is no defense. Section
794.05 similarly obviates consent as a defense if the child is under eighteen, unmarried, and previously was chaste. In 1943, the Legislature broadened its policy of protecting minors by passing section
800.04, the statute involved in these cases. 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. Section
800.04 also provides that the child's lack of chastity and the child's consent are not defenses to charges brought under section
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....
...Santa Clara County,
891 F.2d 715 (9th Cir.1989), cert. denied,
498 U.S. 850,
111 S.Ct. 141,
112 L.Ed.2d 107 (1990); Ravin v. State, 537 P.2d 494 (Alaska 1975). This compelling state interest has been long adhered to in Florida, and has been consistently broadened in scope. Section
800.04 and other Florida statutes evidence no inconsistent or limited loyalty to the social policy of protecting children from sexual activity and abuse. Thus, in my view, the defendants in these cases have failed to demonstrate any constitutional invalidity with section
800.04 on its face or as applied....
...That case involved a father taking explicit photographs of and videotaping his 12-year-old naked daughter. It has been urged that we could uphold the statute by saying that anytime a minor is seduced, sexual exploitation has occurred. This position, however, seems disingenuous. The statute involved in the cases before us, section 800.04, is gender neutral, and there is no age requirement for the violator of the act....
...ally active, mature minor, the question of who "sexually exploited" whom still may not be readily apparent. [3] We reach this conclusion because the statute in question only regulates the behavior of persons under sixteen. Therefore, for purposes of section 800.04, persons sixteen and older are adults....
CopyCited 14 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 139
...The following question has been certified as being of great public importance: MAY A DEFENDANT WHO IS CHARGED BY INFORMATION ALLEGING THAT HE DID UNLAWFULLY HANDLE, FONDLE OR MAKE AN ASSAULT UPON A TWELVE-YEAR-OLD GIRL `BY ENGAGING IN SEXUAL INTERCOURSE' BE CONVICTED OF A VIOLATION OF SECTION
800.04, FLORIDA STATUTES (1981), WHERE THE UNDISPUTED FACTS REVEAL THAT THE TWELVE-YEAR-OLD WAS PREVIOUSLY UNCHASTE AND THE SEXUAL INTERCOURSE WAS CONSENSUAL? The Third District Court of Appeal answered the question in the negative. Lanier v. State,
443 So.2d 178 (Fla. 3d DCA 1983). We have jurisdiction pursuant to Article V, section 3(b)(4), Florida Constitution, and we answer the question in the affirmative. Section
800.04, Florida Statutes (1983), punishes lewd, lascivious or indecent assaults or acts upon or in the presence of a child. Shortly after the certification of this question, the Florida legislature convened and passed an amendment to section
800.04, which was designed to specifically cover the acts committed in the instant case. Section
800.04 was amended, in part, to read: (3) Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section. The legislature indicated its desire to correct the Third District Court of Appeal's misguided interpretation of the legislative intent behind section
800.04 by amending this section shortly after the question was certified. The preamble to chapter 84-86, Laws of Florida, amending section
800.04 notes: WHEREAS, the intent of the Legislature was and 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 of the victim's prior chastity. (Emphasis added.) We must apply section
800.04 as it existed at the time the allegedly lewd and lascivious acts occurred, prior to the enactment of the amendment....
...(An amendment to a statute clarifying the scope of underinsured motorist insurance coverage did not alter the scope of such coverage as it existed prior to the enactment of the amendment because the amendment merely served to clarify the extent of coverage as it previously existed.) Therefore, we hold that section 800.04 both prior to and subsequent to the 1984 amendment is violated when a male engages in sexual intercourse with a twelve-year-old girl despite the fact that the victim was previously unchaste and the sexual intercourse was consensual....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 2002 WL 235673
...Morman challenges whether these two episodes can be further divided into multiple offenses based upon his fondling of different areas of the body during each episode. He argues that such subdividing of an episode into multiple lewd and lascivious offenses offends the guarantee against double jeopardy. Section 800.04(1), Florida Statutes (1997), the version of the statute under which he was prosecuted, states that a person who handles, fondles, or assaults any child under the age of sixteen years in a lewd, lascivious, or indecent manner commits a felony....
...e sufficiently separated by time and *717 location so that double jeopardy was not involved. Id. at 956. Some further guidance can be obtained from the Florida Supreme Court's opinion in State v. Hightower,
509 So.2d 1078 (Fla.1987). "As now worded, section
800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious." Id....
...gs. In these cases, judges are now spending most of their time trying to divine the elusive definition of "family," which distracts them from the real task of assessing the issue-specific probative value of inherently prejudicial evidence. NOTES [1] § 800.04(1), Fla....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal
...t in refusing to grant motion for new trial." (Emphasis added) No reversible error having been demonstrated in the instant case, the judgment of conviction must remain undisturbed. Affirmed. SHANNON, C.J., and SMITH, J., concur. NOTES [1] Fla. Stat. § 800.04, F.S.A.
CopyCited 13 times | Published | Supreme Court of Florida | 1990 WL 130220
...osed based on that reason alone. Albritton v. State,
476 So.2d 158 (Fla. 1985). Therefore, we direct the district court to remand for resentencing. It is so ordered. SHAW, C.J., and OVERTON, EHRLICH, BARKETT, GRIMES and KOGAN, JJ., concur. NOTES [1] §
800.04, Fla....
CopyCited 13 times | Published | Florida 3rd District Court of Appeal | 1997 WL 194122
...Glaid, Assistant Attorney General, for appellee. Before JORGENSON, COPE and GERSTEN, JJ. COPE, Judge. Miguel Bauta appeals his convictions for capital sexual battery in violation of subsection
794.011(2), Florida Statutes (1991), and lewd, lascivious, or indecent assault in violation of section
800.04, Florida Statutes (1991)....
...battery. In State v. Hightower,
509 So.2d 1078 (Fla.1987), the Florida Supreme Court held that the crime of sexual battery and the crime of lewd, lascivious, or indecent assault or act are mutually exclusive. Id. at 1079. Presumably for that reason, section
800.04 is not listed as a lesser included offense of the crime of sexual battery in the Schedule of Lesser Included Offenses in the Florida Standard Jury Instructions in Criminal Cases....
CopyCited 13 times | Published | Supreme Court of Florida | 1994 WL 585670
...to help him with a history project during the summer, but Hallberg's visits were not scheduled with the parents' knowledge or consent and he appeared at the house and entered when only S.S. was home. Based on these acts, Hallberg was convicted on five counts of committing a lewd act upon a child, section 800.04, Florida Statutes (1987) [1] , and three counts of engaging a child in sexual activity by a person in a position of familial or custodial authority....
...susceptible of differing constructions, it shall be construed most favorably to the accused." Accordingly, we approve that portion of the district court's decision that affirmed Hallberg's five convictions of committing a lewd act upon a child under section 800.04, but quash the district court's decision insofar as it affirmed the three counts of sexual activity by a person in custodial authority and remand for further directions to the trial court consistent with this opinion....
...The connection could not be more clear or direct. I disagree with the majority's analysis on this point, and its broad holding. To my mind, the issue is simple: The statute is intended to protect Florida's children from those to whom they are most vulnerable. HARDING, J., concurs. NOTES [1] Section 800.04, Fla....
CopyCited 13 times | Published | Florida 1st District Court of Appeal | 2004 WL 1685444
...verdict. We agree, reverse the convictions, and remand for a new trial. The jury returned a verdict of guilty both of sexual battery, in violation of section
794.011(2)(a), Florida Statutes (2001), and of lewd and lascivious conduct, in violation of section
800.04(5)(b), Florida Statutes (2001), alleged in the information to have occurred "on or between the 17th day of February, 2001 and the 5th day of May, 2001." Evidence was adduced at trial of two distinct episodes, each involving digital and lingual contact with the child's vagina....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 14398, 2009 WL 3047390
...Pasko,
815 So.2d 680, 681 (Fla. 2d DCA 2002). Each of the charges against Sholl will be examined using this standard. *1161 Lewd or Lascivious Exhibition (Count I) Count I of the information charged Sholl with lewd and lascivious exhibition pursuant to section
800.04(7)(a), Florida Statutes (2008)....
...Sholl moved to dismiss the charge as he argued the undisputed facts did not establish that he engaged in "lewd or lascivious" conduct. The trial court improperly granted the motion because whether Sholl's conduct was "lewd or lascivious" should have been submitted to the jury. According to section 800.04(7)(a), a defendant can commit "lewd and lascivious exhibition" in a variety of ways, including intentionally exposing "the genitals in a lewd or lascivious manner." The terms "lewd" and "lascivious" are not defined in the statutory scheme....
...) Intentionally commit any other sexual act that does not involve actual physical or sexual conduct with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity. See § 800.04(7)(a), Fla....
...inion. BENTON, J., concurring in judgment. I concur in reversing the grant of appellee's motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), insofar as the order granting motion to dismiss dismissed the charge under chapter 800.04 ("Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age"), Florida Statutes (2007), because the motion did not allege that the age of the investigator who was posing as a 13-year-old girl was 16 or greater....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 2013 WL 5567495
...4th DCA 2006), and Stumpf v. State,
677 So.2d 1298 (Fla. 5th DCA 1996), to argue that merely describing what he intended to do to the girl did not constitute solicitation. Those cases involved defendants charged with soliciting a minor to commit a lewd or lascivious act. See §
800.04(6), Fla....
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 2003 WL 22259423
...edator designation to Kidd, pursuant to the proper subsection which requires proof of a prior felony conviction or plea to a felony. AFFIRMED in part; REVERSED in part; REMANDED for further proceedings. PETERSON and PLEUS, JJ., concur. NOTES [1] See § 800.04(4)(a), Fla....
CopyCited 12 times | Published | Florida 1st District Court of Appeal
...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....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1990 WL 57805
...Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee. ZEHMER, Judge. Zonald Weatherford appeals his conviction, pursuant to a jury verdict, for committing a lewd act upon a child in violation of section 800.04, Florida Statutes....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal
...ed against the use of such evidence. The court granted defendant's motion for a judgment of acquittal as to the charge of sexual battery but allowed the case to go to the jury on the lesser offense of making a lewd and lascivious assault on a child. § 800.04, Fla....
CopyCited 12 times | Published | Supreme Court of Florida
...Ervin, Atty. Gen., Jos. Manners and B. Jay Owen, Asst. Attys. Gen., for appellee. THORNAL, Justice. Appellant, who was defendant below, seeks reversal of a judgment of conviction pursuant to a jury verdict finding him guilty of the offense defined by Section 800.04, Florida Statutes, F.S.A., condemning the fondling of a child under 14 years of age in a lewd or indecent manner....
...d a fundamental error, which would be reviewable in the absence of objection below, by referring to a written statement by the appellant as a "confession" when in actuality it was not confession. The appellant was tried and convicted of violation of Section 800.04, Florida Statutes, F.S.A....
CopyCited 12 times | Published | Supreme Court of Florida | 1998 WL 42190
...ANSTEAD, Justice. We have for review the decision in State v. J.A.S.,
686 So.2d 1366 (Fla. 5th DCA 1997). We accepted jurisdiction to answer the following question certified to be of great public importance: WHETHER THE POTENTIAL PENALTY FOR VIOLATION OF SECTION
800.04, FLORIDA STATUTES, BY A MINOR UNDER THE AGE OF SIXTEEN FURTHERS A COMPELLING STATE INTEREST THROUGH THE LEAST INTRUSIVE MEANS? Id. at 1370. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the affirmative, approve the decision under review, and hold that under the factual circumstances presented herein section
800.04, Florida Statutes (1993), furthers the State's compelling interest in protecting minors from harmful sexual conduct through the least intrusive means....
...One of the boys had sixty-five prior referrals to HRS with thirty-five adjudications. He was on community control when charged and had previously engaged in sex with the victim's thirteen-year-old sister. The other boy had eight prior juvenile referrals and four adjudications. Id. at 1368. The trial judge found section 800.04, Florida Statutes (1993), [2] unconstitutional as applied to the boys because it violated their rights to privacy and equal protection, and the harsh adult sanctions would constitute cruel and unusual punishments if the boys were charged as adults in a felony criminal prosecution....
...der sixteen may have, surely it does not extend to an absolute and unregulated right to engage in recreational sex with a minor also under that age."
686 So.2d at 1369. Accordingly, the court refused to "eliminate by judicial fiat whatever restraint section
800.04 provides in prohibiting sexual activity by minors in furtherance of the State's compelling interest in preventing such conduct and its consequences." Id....
...LAW AND ANALYSIS This case presents policy questions similar to the ones we addressed in B.B. v. State,
659 So.2d 256 (Fla.1995), and Jones v. State,
640 So.2d 1084 (Fla.1994). In Jones, we upheld the constitutionality of the specific statute at issue in this case, section
800.04. [5] There, the issue was whether Florida's statutory rape law as defined in section
800.04 was constitutional in criminalizing consensual sexual intercourse by an adult with a person under the age of sixteen....
...al intercourse with the defendant. Jones, the eighteen-year-old, was convicted and sentenced to four and one-half years' imprisonment. However, in separate cases involving the other defendants, a different trial judge dismissed the charges, declared section 800.04 unconstitutional as applied and held that the statute constituted an unreasonable restriction on the consenting victims' right of privacy....
...On the other hand, we reasoned in B.B. that the statute was "not being utilized as a shield to protect a minor, but rather, it [was] being used as a weapon to adjudicate a minor delinquent." B.B.,
659 So.2d at 260. In contrast, under the circumstances presented here, we conclude that section
800.04 is being primarily utilized as a shield to protect the twelve-year-old girls, rather than a weapon to arbitrarily adjudicate the fifteen-year-old boys as delinquents....
...See J.A.S.,
686 So.2d at 1369 (reasoning that minors under sixteen have no unfettered right to engage in recreational sex with others under sixteen because the "costs and risks to society and the children involved are far too great"). Therefore, we conclude that section
800.04, as applied herein, furthers the compelling interest of the State in the health and welfare of its children, through the least intrusive means, by prohibiting such conduct and attaching reasonable sanctions through the rehabilitative juvenile justice system....
...volved. If we blinded ourselves to the unique facts of each case, we would render decisions in a vacuum with no thought to the serious consequences of our decisions for the affected parties and society in general. CONCLUSION In summary, we hold that section 800.04, Florida Statutes (1993), as applied in the circumstances presented here, furthers the State's compelling interest in protecting minors from harmful sexual conduct through the least intrusive means....
...KOGAN, C.J., OVERTON, SHAW, HARDING and WELLS, JJ., and GRIMES, Senior Justice, concur. NOTES [1] The following facts are taken from the district court's opinion. J.A.S.,
686 So.2d at 1367-70. [2] The trial court specifically found subsection (4) unconstitutional as applied. The first three subsections of section
800.04 deal with sexual assault or sexual battery....
...nishment involved, as reflected by its unwillingness to change the statutory prohibitions and penalties... during their 1996 session, although fully acknowledging that it was aware of the problem."
686 So.2d at 1369. [5] Although both cases construe section
800.04, Jones addressed the 1991 statute, while J.A.S....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 1997 WL 205247
...PER CURIAM. Appellant raises two issues in this direct appeal. We affirm on the first issue without further discussion, but we reverse for new trial on the second issue. Appellant was charged in a single count with lewd and lascivious assault in violation of section 800.04(1), Florida Statutes (1993), or knowingly committing a lewd or lascivious act in the presence of a child under sixteen years of age in violation of section 800.04(4). At trial, however, the court instructed the jury without objection on the alternatives of sections 800.04(1) and 800.04(2)....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 2008 WL 1805826
...iction for sexual battery and lewd and lascivious act arising out of the same episode would not violate double jeopardy. There were, however, four counts of lewd and lascivious conduct alleged against Binns, charged pursuant to an earlier version of section 800.04, Florida Statutes....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 2003 WL 22056269
...ATUTES (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. Stat. (2000). [3] §
800.04(5), Fla....
CopyCited 11 times | Published | Supreme Court of Florida
...ts of individuals guaranteed by the First and Fourteenth Amendments to the United States Constitution and the Declaration of Rights of the State of Florida. A similar attack was raised against the use of the words "lewd and lascivious" in Fla. Stat. § 800.04, F.S.A., but this Court held the words sufficient in Chesebrough v....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2004 WL 330877
...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....
CopyCited 11 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 86
...ositive, however, of the question of whether that error is reversible. Although the trial court rejected the requested charge on simple battery, it granted defendant's request that the jury be instructed on lewd assault, a second degree felony under section 800.04, Florida Statutes (1983), as a lesser offense of the sexual battery charge....
...hed down to convict of an even lower crime. State v. Bruns,
429 So.2d 307 (Fla. 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)....
...y 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 s.
775.082, s.
775.083, or s.
775.084. [2] Section
800.04, Florida Statutes (1983) provides: Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in th...
...In 1984, the Legislature comprehensively amended the sexual offense statutes. However, the offense here was committed before October 1, 1984, the effective date of the 1984 amendment, so for that reason the 1983 versions of the sexual offense statutes, particularly section 800.04, are relevant to the present decision....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal
...The question presented on this appeal is whether having consensual sexual intercourse with an unchaste twelve-year-old girl constitutes the offense of handling or fondling in a lewd, lascivious or indecent manner or the offense of making an assault in a lewd, lascivious or indecent manner, both proscribed by Section 800.04, Florida Statutes (1981)....
...The defendant was charged by an information alleging that he, between certain specified dates, "did unlawfully handle, fondle or make an assault upon [S] by engaging in sexual intercourse, but without the intent to commit Involuntary Sexual Battery, in violation of 800.04 ......
...State,
356 So.2d 787 (Fla. 1978) (holding constitutional the defining of licentious sexual intercourse, without consideration, as prostitution under Section
796.07); or contributing to the delinquency of a minor, §
827.04(3), Fla. Stat. (1981), [1] he insists that *181 Section
800.04 is inapplicable to his conduct. We also make clear that the defendant does not contend that Section
800.04, Florida Statutes (1981), an essential element of which is that the accused's acts be done "without the intent to commit sexual battery," [2] see State v. Sumner,
157 Fla. 371,
26 So.2d 336 (1946) (affirming trial court order quashing information charging offense under former Section
800.04 where allegation that defendant acted without intent to commit rape omitted); cf....
...State,
263 So.2d 611 (Fla. 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. 74-121, Laws of Florida, Section
800.04 was redrafted to bar the recited lewd acts perpetrated "without the intent to commit involuntary sexual battery," §
800.04, Fla. Stat. (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....
...xual 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....
...cts cannot sustain a finding that either the crime of assault or handling and fondling occurred. We have little difficulty agreeing that the undisputed facts are wholly insufficient to sustain the charge of assault. The "assault" crime proscribed by Section 800.04 includes the elements of assault and battery, whether defined at common law or by statute....
...2d DCA 1981); Russell v. State,
373 So.2d 97 (Fla. 2d DCA 1979); J.M.C. v. State,
331 So.2d 366 (Fla. 3d DCA 1976), embrace the consensual, non-violent conduct which occurred in the present case. Therefore, the instant prosecution of the defendant under Section
800.04 is sustainable only if the alleged consensual sexual intercourse with an unchaste child under the age of fourteen can constitute the offense of handling or fondling within the statute. [6] The information herein charged the defendant with handling and fondling by engaging in sexual intercourse. Such an allegation does not, in our view, set forth a crime contemplated by Section
800.04....
..."Sexual intercourse," on the other hand, "means actual contact of the sexual organs" of two persons and penetration of the body of another. Williams v. State,
92 Fla. 125, 127,
109 So. 305, 306 (1926) (citation omitted). Since the Legislature specifically used words of distinct and clear meaning in Section
800.04, the courts "may not invade the province of the legislature and add words which change the plain meaning of the statute." Metropolitan Dade County v....
...a touching incidental to the rape). Our conclusion that the Legislature did not intend to prohibit consensual sexual intercourse with an unchaste twelve-year-old under the rubric of handling and fondling [7] 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......
...Thus, sexual intercourse with a child eleven years of age or younger is always a crime, but sexual intercourse with a child between the ages of twelve and eighteen is a crime only if the unmarried "victim" is of previous chaste character. If, then, the offense created by Section
800.04 which, as the offense created by Section
794.05, is a second-degree felony were read to include consensual intercourse with an unchaste child under the age of fourteen, the chastity requirement of Section
794.05 would be rendered...
...o commit a sexual battery, that is, without the intent to commit one of the crimes enumerated in Section
794.011(2) through (5). However, because the acts were indisputably consensual, no assault occurred. Nor could the defendant be prosecuted under Section
800.04 for handling and fondling where the information describes or the undisputed facts show the handling and fondling to be an act of sexual intercourse, since consensual sexual intercourse with an unchaste child between the ages of twelve and fourteen is not a crime under Section
800.04....
...Accordingly, the judgment below is reversed with directions to dismiss the information and discharge the defendant. JORGENSON, Judge, dissenting. I respectfully dissent. The issues of consent and chastity, present in terms of chapter 794, Florida Statutes (1981), are not relevant to section 800.04, Florida Statutes (1981). The fact that a sexual battery did not occur (consent and chastity there being issues) does not, in my view, preclude prosecution under section 800.04. The language in section 800.04, "any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner" (emphasis added), was unquestionably satisfied in the instant case....
...The intent of the legislature is determined by looking to the plain language of the statute. S.R.G. Corp. v. Department of Revenue,
365 So.2d 687 (Fla. 1978); Thayer v. State,
335 So.2d 815 (Fla. 1976). The only conclusion that can be reached by looking to the plain language of section
800.04 is that the legislature intended to proscribe all lewd and lascivious conduct upon any child under the age of fourteen....
...See People v. Lew, 78 Cal. App.2d 175, 177 P.2d 60 (1947); People v. Lowell, 77 Cal. App.2d 341, 175 P.2d 846 (1946); People v. McDougal, 74 Cal. App. 666, 241 P. 598 (1925); Edwards v. State, 491 S.W.2d 87 (Tenn.Cr.App. 1972), cert. denied, (Tenn. 1973). [2] Section 800.04, Florida Statutes (1981), provides: "Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in...
...2d DCA 1968), appeal dismissed,
234 So.2d 120 (Fla. 1969), cert. denied,
399 U.S. 927,
90 S.Ct. 2242,
26 L.Ed.2d 794 (1970). But here the defendant's claim is not that he intended to commit sexual battery, but that he intended to commit no crime under Section
800.04....
...[6] The State contends that this very question was decided adversely to Lanier in Dunson v. State,
194 So.2d 68. We disagree. In Dunson, as in Matava v. State,
358 So.2d 1116, and Knox v. State,
361 So.2d 799, the accused defended against an assault charge under Section
800.04 by arguing that if the prosecution had proved any offense, it had proved a completed forcible rape....
..., and accordingly rejected the defendant's claim.
194 So.2d at 69. Thus, the issue presented in the present case was neither raised nor ruled upon in Dunson and is one of first impression in this state. [7] Whether a defendant could be charged under Section
800.04 with handling and fondling in a lewd and lascivious manner where, although the information specifies a touching with the hands, the touching is indisputably incidental to an act of consensual sexual intercourse with a person not of pre...
...However, it would appear to be anomalous that the Legislature would condemn the consensual touching of an unchaste person while not condemning the more serious act of consensual sexual intercourse with the same person. The anomaly disappears only by holding that Section 800.04 condemns the sexual intercourse as well, a holding which we find to be inconsistent with the legislative intent, or by holding that the reach of the handling and fondling provision of Section 800.04 is limited to non-consensual handling and fondling which does not amount to assault and where the victim's prior chastity is irrelevant....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2002 WL 2030348
...Because the trial court abused its discretion in finding that the similar crime evidence was proper Williams [1] rule evidence, we reverse. On December 21, 2000, the State charged Kulling with one count of lewd or lascivious exhibition for masturbating in the presence of a child under sixteen in violation of section 800.04(7)(b), Florida Statutes (2000)....
CopyCited 10 times | Published | Court of Appeals for the Eleventh Circuit | 2004 U.S. App. LEXIS 18606
...under former § 212(c) of the Immigration and Nationality Act.
Chuang entered the United States in 1988, and became a lawful permanent
resident on April 12, 1989. On July 15, 1996, he pleaded guilty to indecent assault
of a child under 16 in violation of Fla. Stat. § 800.04....
...convicted of an
aggravated felony at any time after admission is deportable.” An aggravated
felony is defined in 8 U.S.C. § 1101(a)(43)(A) to include “murder, rape, or sexual
abuse of a minor.”
Chuang was convicted under Fla. Stat. § 800.04 on July 15, 1996. The
judgment against Chuang listed his crime as “Indecent Assault child under 16.”
Section 800.04 proscribes different types of conduct, and it is not clear pursuant to
which prong Chuang was charged. At the time of his conviction, § 800.04 read as
follows:
Lewd, lascivious, or indecent assault or act upon or in presence of child
A person who:
(1) Handles, fondles, or assaults any child under the age of 16 years in a
lewd, lascivious, or indecent man...
...Neither the victim’s lack of chastity nor the victim’s consent is a
defense to the crime proscribed by this section. A mother’s breastfeeding of her
baby does not under any circumstance violate this section.
4
Fla. Stat. §
800.04 (1996).
In United States v. Padilla-Reyes,
247 F.3d 1158 (11th Cir. 2001), we held
in relation to a previous version of Fla. Stat. §
800.04 that “a violation of §
800.04
is ‘sexual abuse of a minor’” under 8 U.S.C....
...nces of his offense
instead of the terms of the statute under which he was convicted. He asserts that
his conduct, “indecent pointing–and perhaps touching–of a young boy’s penis,”
though it qualified as indecent assault under Fla. Stat. § 800.04, did not constitute
“sexual abuse of a minor” because the facts showed no purpose associated with
sexual gratification.
Chuang’s argument fails....
...I.N.S.,
55 F.3d 580, 583 (11th Cir. 1995). Thus, in determining whether Chuang was
5
convicted of “sexual abuse of a minor,” we do not look to the facts of his offense,
but to the conduct proscribed by Fla. Stat. §
800.04. We have already held that
“sexual abuse of a minor” includes a violation of Fla. Stat. §
800.04. Padilla-
Reyes,
247 F.3d at 1164. The only difference between the versions of §
800.04
under which Padilla-Reyes and Chuang were convicted is the addition to the latter
of prong (2), which involves “actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd
exhibition of the genitals, or any act or conduct which simulated that sexual battery
is being or will be committed upon any child under the age of 16 years.” Compare
Fla. Stat. §
800.04 (1987), with Fla. Stat. §
800.04 (1996). We do not think that
this addition proscribes any conduct that does not involve “a purpose associated
with sexual gratification.” Padilla-Reyes,
247 F.3d at 1163. Thus, regardless of
which prong of §
800.04 Chuang’s conduct fell under, his conviction was for a
crime constituting “sexual abuse of a minor” under 8 U.S.C....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 2001 WL 1219487
...Accordingly, we reverse with the direction that the added conditions of probation be stricken. REVERSED. GRIFFIN and PALMER, JJ., concur. NOTES [1] Section
948.03(5) makes certain conditions of probation standard with respect to offenders convicted of a violation of section
800.04, lewd act upon a child: (5) Conditions imposed pursuant to this subsection, as specified in paragraphs (a) and (b), do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this subsection. (a) Effective for probationers or community controllees whose crime was committed on or after October 1, 1995, and who are placed under supervision for violation of chapter 794, s.
800.04, s....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2990688
...McBride,
848 So.2d 287, 292 (Fla.2003) ("[C]ollateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice."). Cillo was convicted of three counts of lewd and lascivious conduct with a child over twelve, but under sixteen, in violation of section
800.04, Florida Statutes (1999)....
...75 years. The trial court sentenced him to three concurrent terms of 12.75 years in prison followed by two years of community control and thirty years of probation. Cillo argues that because lewd and lascivious conduct is a second-degree felony, see §
800.04(5)(c)(2), then the maximum sentence he could receive was fifteen years unless the sentences were imposed consecutively for a total of forty-five years, see §
775.082(3)(c), Fla....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 1991 WL 36399
...We find that none of the reasons given by the trial judge supports a downward departure and accordingly vacate the sentence and remand for resentencing. *1334 In 1988 the defendant, a police officer, was charged with lewd and lascivious assault on a child under the age of 16 years, a violation of section 800.04, Florida Statutes (1985)....
...n a residential area. The second district held that the fact that there was no nexus between the crime and the school was properly considered by the trial judge in imposing a downward departure sentence. Here the defendant was convicted of violating section 800.04 which prohibits sexual intercourse with children under the age of 16....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 2005 WL 607907
...Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant. *261 Charles J. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant, Cowboy Sherrer, was convicted of lewd and lascivious molestation pursuant to section 800.04(5), Florida Statutes (2002)....
...See, e.g., Williams v. State,
627 So.2d 1279 (Fla. 1st DCA 1993); Lowman v. Moore,
744 So.2d 1210 (Fla. 2d DCA 1999); Firkey v. State,
557 So.2d 582 (Fla. 4th DCA 1989) ( on reh'g ); Fla. Std. Jury Instr. (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....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2003 WL 21697206
...nearby, and kissed her with his tongue inside her mouth. Again, he told her not to tell anybody. Appellant was convicted of three counts of lewd assault by kissing and inserting his tongue into the mouth of the victim, in violation of what was then section 800.04(1), Florida Statutes, and one count of lewd act by positioning himself on the body of the victim and touching, rubbing, or moving his body and/or pelvic area against the victim's, in violation of what was then section 800.04(2), Florida Statutes....
...injury points were properly scored. Id. at 931-32; see also Blackburn v. State,
762 So.2d 989, 990 (Fla. 5th DCA 2000)(holding that defendant's act of rubbing his erect penis on the victim's clothed back while in a department store, in violation of section
800.04(1), constituted sexual contact for proper assessment of victim injury points); Mackey v....
...State,
802 So.2d 281 (Fla.2001), the Florida Supreme Court considered circumstances under which victim injury points may be assessed for "sexual contact" under section 921.0011(7). There, the defendant argued that the trial court had improperly assessed victim injury points following his conviction under section
800.04 for fondling a minor victim's buttocks....
...of one person with the oral, anal, or vaginal opening of another. The court pointed out that: [U]nder the interpretation of "sexual contact" advocated by Seagrave, section 921.0011(7)(b)2. would be inapplicable to defendants convicted under sections 800.04(1) and (2) of the lewd and lascivious conduct statute, because these subsections prohibit a variety of acts that do not necessarily require the union of a sexual organ of one person with the oral, anal or vaginal opening of another....
...In light of Seagrave's more expansive interpretation of "sexual contact," which takes into account the wide range of activity proscribed by the lewd and lascivious statute, we conclude that appellant's act of french kissing the victim comes within the definition of sexual contact. Section 800.04(1), under which appellant was convicted, prohibits a person from handling, fondling, or assaulting any child under sixteen in a lewd, lascivious, or indecent manner....
...n of these points did not result in a sentence in excess of the statutory maximum penalty for his sexual battery conviction). For the above reasons, we affirm the sentence imposed by the trial court. AFFIRMED. KLEIN and GROSS, JJ., concur. NOTES [1] Section 800.04, Florida Statutes, provided in pertinent part: 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 actual or simulated sexual intercou...
...ed.1986). [4] In 1999, the Legislature amended the lewd and lascivious statute to include a section which delineates the forms and body areas of touching that constitute "lewd or lascivious molestation." Ch. 99-201, § 6, at 1187-88, Laws of Fla. Now, section 800.04(5) provides, in part: (a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to touch the perpetrator, commits lewd or lascivious molestation. Section 800.04(6), however, continues to describe lewd or lascivious conduct in more general terms....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1989 WL 5674
...Defendant Smith was charged with three first degree felony counts of sexual battery upon a child in violation of section 794.041(2)(b), Florida Statutes, and two second degree felony counts of lewd, lascivious, or indecent acts on a child in violation of section 800.04, Florida Statutes....
CopyCited 10 times | Published | District Court, S.D. Florida
...tion of the particularly offending phrase "`lewdness' shall be construed to include any indecent or obscene act," found in subsection (1)(b) of the statute. The Florida Supreme Court had the occasion to interpret the term "lewd" with respect to F.S. § 800.04, F.S.A., which prohibits, inter alia, the knowing commission of "any lewd or lascivious act" in the presence of a child under the age of fourteen, in Chesebrough v....
...It is generally used to indicate gross indecency with respect to the sexual relations. See 50 Am.Jur.2d, Lewdness, Indecency, etc., § 1, pp. 450-451, which contains a discussion of the common law definition of lewdness. This Court in Boles v. State,
158 Fla. 220,
27 So.2d 293 (1946), in discussing Fla.Stat. §
800.04, F.S.A., said: `In fine, the statute condemns an assault on or an act committed in the presence of a child under fourteen years of age in a lewd, lascivious, or indecent manner, without intent to commit rape....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 2007 WL 419360
...Wilson, Assistant Attorney General, Daytona Beach, for Appellee. MONACO, J. William Triplett appeals the judgment of guilt and the sentence imposed on him by the trial court after a jury convicted him of one count of lewd or lascivious molestation of a minor less than twelve years of age, in violation of section 800.04(5)(a)(b), Florida Statutes (2004)....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2004 WL 314515
...d on Knarich's motion to disqualify the judge, we reverse and remand for resentencing before a different trial judge. The State charged Knarich with handling and fondling a child under the age of sixteen years, a second-degree felony in violation of section 800.04, Florida Statutes (1997), which is entitled, "Lewd, lascivious, or indecent assault or act upon or in presence of child." The amended information alleged that Knarich committed this offense "by placing the hand of Curtis Harold Knarich...
...e military offenses, not as the law existed in 1997, the time he committed the Florida offense for which he is now being sentenced. In Dautel, the Florida Supreme Court declined to address this issue, stating, "Dautel argues that the 1983 version of section
800.04, which provides that it is a second-degree felony to commit a lewd or lascivious act on a child under the age of fourteen, is applicable because his Ohio conviction occurred in 1984. Because we find that section
800.04 is not analogous to Ohio's section 2907.05(A)(2), we need not address this issue."
658 So.2d at 91 n....
...However, that statute, section
827.071, Florida Statutes, did not become effective until October 1, 1983, after Knarich had committed several of his military offenses. See Ch. 83-75, § 6 at p. 247, Laws of Fla. In addition, in 1983 the lewd and lascivious statute, section
800.04, required that the child be under the age of fourteen years....
...ontact,' which takes into account the wide range of activity proscribed by the lewd and lascivious statute." In Altman, the court determined that French-kissing a six-year-old constituted sexual contact in the case of a lewd assault conviction under section 800.04(1)....
...lascivious manner supports the scoring of victim injury points for sexual contact. APPRENDI Knarich received a thirty-five year sentence on a second-degree felony, which has a statutory maximum of fifteen years' imprisonment. See §§
775.082(3)(c),
800.04, Fla....
...The verdict form reflects that the jury found Knarich guilty of "Handling or Fondling a Child under the Age of Sixteen Years, as charged." Knarich was charged with handling or fondling a child under sixteen years of age in a lewd and lascivious manner, in violation of section 800.04(1), Florida Statutes (1997)....
CopyCited 10 times | Published | Florida 1st District Court of Appeal
...JOHNSON, J., concurs. SPECTOR, J., dissents. SPECTOR, Judge (dissenting). I respectfully dissent from the majority's "underkill" opinion. I think the judgment should be affirmed. NOTES [1] Abram v. State,
216 So.2d 498 (1st Cir.Fla. App. 1968). [2] Florida Statute
800.04....
CopyCited 10 times | Published | Florida 1st District Court of Appeal
...t was a mere continuation of the act charged in the first count, of which the appellant was acquitted; that both Counts 2 and 3 failed to charge a definite and specific felony; that the language of the third conformed more or less to the language in Section 800.04, Florida Statutes, F.S.A., the punishment for violation of which was ten years as a maximum....
...In his petition the appellant also complained concerning certain correspondence he received from the Attorney General of Florida. In order to understand the issues involved in this appeal it is necessary to examine and study the several statutes involved. Section 800.04, Florida Statutes, F.S.A., provides: "Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd...
...291,
22 So.2d 804, and other cases. We now turn our attention to the question whether the Child Molester Act violated Article III, Section 16, of the Florida Constitution by failing to reenact and publish at length the sections of the statutes amended by that act, such as Section
800.04, Florida Statutes, F.S.A....
...306; and State ex rel. Hurner v. Culbreath,
140 Fla. 634,
192 So. 814; L.R.A. 1918E, 639. In the instant case the Child Molester Act did not in terms purport to amend any prior statutory provision, and consequently it was not required to reenact and publish at length Section
800.04, Florida Statutes, F.S.A., or any other statute....
...ase. In this consideration we must acknowledge that the words "lewd and lascivious behavior" are not defined in the Child Molester Act. It is also true that those words are not defined anywhere in the Florida Statutes. It is to no avail to resort to Section 800.04, Florida Statutes, F.S.A., for in that section reference is made to handling, fondling, or assaulting a child under the age of fourteen "in a lewd, lascivious or indecent manner" and to knowingly commit "any lewd or lascivious act" in the presence of such child, etc....
...The crimes alleged and proven in this case were that the appellant committed a certain lewd and lascivious act in the presence of a female 13 years of age and of fondling the female in a lewd and lascivious manner. Since these offenses were crimes under Section 800.04, Florida Statutes, F.S.A., even absent the Child Molester Act it cannot correctly be said that the Child Molester Act purported to create a new crime, so far as this appellant is concerned....
...As said before, the appellant filed his petition for writ of habeas corpus in the Circuit Court for Union County, in which county the State prison is located. In that court's order, which is appealed from herein, the judge said: "It is obvious that counts two and three of the informations were based on Chapter 800.04, Florida Statutes; that the sentence imposed by the Court *58 was based on Chapter 801.03 [1] (a), Florida Statutes. * * * * * * "It is the opinion of the Court that counts two and three of the information charged only one offense under Section 800.04....
...r writ of habeas corpus filed therein, yet "affirms in part and reverses in part" the order of denial. The conviction and sentence were based upon an information containing three counts, the second and third of which charged an offense as defined by Section 800.04, Florida Statutes (1955), F.S.A., which is repeated in order to keep my observations in proper perspective: "800.04 Lewd, lascivious or indecent assault or act upon or in presence of child....
...mere existence of error does not raise a presumption to that effect. F.S. Sec.
924.33, F.S.A. I fully agree with the conclusion of the majority that each of the counts upon which the convictions are based sufficiently charges the offense defined by Section
800.04, and it is my position, further, that under the laws of the state the information herein does not charge any crime other than that defined by that section....
...ble conclusion that they are but separate incidents or links in a closely related and continuing chain of events, and that the facts charged in these counts, taken singly or collectively, admit of only one conviction and only one crime as defined by Section 800.04; and it follows that the separate convictions on these counts amount in fact and in law to a single conviction under the statute....
...rs not to exceed twenty-five years in the state prison at Raiford." (Emphasis supplied.) Laws 1951, c. 26843, §§ 3, 4, as amended Laws 1953, c. 28158, § 2, 3, 6. If the provisions of this act do not apply, the punishment must be according to F.S. Section 800.04, F.S.A. which prescribes a maximum of ten years imprisonment. The parent law out of which Section 800.04 was carved is chapter 21974, Laws of 1943, which was incorporated into the *62 Florida Statutes in 1945....
...he common law, and the statutory law of Florida does not define such a crime. It is only by speculation, and with a very cold trail to nose on, that one might conclude that the above emphasized language of Sections 801.02, 801.03 has any relation to Section 800.04, and even if we arrive at the latter we find no comfort, because it only defines the offense by the acts composing it, and omits to give the crime a name by which to be known, such as "lewd and lascivious behavior." There is no questio...
...There are multiple reasons why the courts should never relax the statutory provisions governing such legislation, as in my opinion is the effect of the controlling decision herein. Aside from the above consideration, the provisions of the Child Molester Act are on constitutional grounds inapplicable to F.S. Section 800.04, F.S.A....
...The legislature has power, of course, at any time to enact a law that within its four corners redefines a crime that already appears in the statutes, and in such law to fix a greater penalty than that imposed by the prior statute. However, F.S. chapter 801, F.S.A. did not reenact or purport to repeal F.S. Section 800.04, F.S.A., nor did it reenact or publish at length those provisions of that section prescribing the punishment for the offense therein defined....
...law, including those contained in Florida Statutes, must reenact and publish at length the revised section, subsection of a section, or paragraph of a subsection of a section. I am convinced that appellant was duly convicted of the felony defined by Section 800.04, Florida Statutes (1955), F.S.A., for which he became and remains subject to punishment by imprisonment in the state prison or county jail for not more than ten years....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1989 WL 101584
...ions. Dorch v. State,
458 So.2d 357 (Fla. 1st DCA 1984), see also, Murray v. State,
471 So.2d 70 (Fla. 4th DCA 1984), rev'd in part on other grounds,
491 So.2d 1120 (Fla. 1986), Barnes v. State,
348 So.2d 599 (Fla. 4th DCA 1977). NOTES [1] See e.g., section
800.04(1), Florida Statutes....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2002 WL 2001331
...Brockman of the crime of lewd or lascivious molestation of a child. I find that there is no competent evidence upon which the jury could lawfully return such a verdict and therefore direct the entry of a judgment of not guilty. The sole predicate for a finding that a crime had been committed [in violation of section 800.04(5)(b), Florida Statutes] and that defendant did it came from the uncorroborated statements of the alleged victim....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 1994 WL 502300
...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). The evidence adduced could also have supported a jury verdict of lewd, lascivious, or indecent assault or act upon or in the presence of a child, a violation of section
800.04....
CopyCited 9 times | Published | Supreme Court of Florida | 2005 WL 2779476
...In August 1997, Therrien pled nolo contendere to the lesser included offense of attempted sexual battery by a person under eighteen on a person under twelve and to the lewd and lascivious assault count as charged. Both crimes were second-degree felonies. See §§
777.04(4)(c),
794.011(2)(b),
800.04, Fla....
...tempted sexual battery by a person under eighteen on a person under *945 twelve an FSPA-qualifying offense. See ch. 98-81, § 3, at 591, Laws of Fla., codified at §
775.21(4)(c)(1)(b), Fla. Stat. (Supp.1998). Another amendment made any violation of section
800.04 a qualifying offense for the FSPA....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal
...Gen., and Irving B. Levenson, Asst. Atty. Gen., for appellee. CARROLL, CHAS., Chief Judge. Appellant was informed against and charged with the prescribed crime of assault in a lewd and lascivious manner on a girl under 14 years of age. [1] The offense, covered by § 800.04, Fla....
...As authorized under rule 6.16, Florida Appellate Rules, 31 F.S.A., we hold on the authority of Buchanan v. State, Fla. App. 1959,
111 So.2d 51, that the sentence of confinement in the county jail was not a lawful sentence. The provision for sentence as contained in §
800.04, Fla....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal
...lt or act upon her in violation of Section
787.01, Florida Statutes (1981). He is also charged with committing a lewd, lascivious or indecent assault or act upon the child, age nine years, without the intent to commit sexual battery, in violation of Section
800.04, Florida Statutes (1981)....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2007 WL 1827475
...Count one alleged that "Abbott did, being 18 years of age or older, intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of [the victim], a person less than 12 years of age, in violation of Florida Statute [section] 800.04(5)(b)." As to count two, the State contended that "Abbott did, being 18 years of age or older, intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of [the victim], a person less than 12 years of age, or did force or entice [the victim] to so touch the defendant, in violation of Florida Statute [section] 800.04(5)(b)." The evidence at trial centered on the victim's allegations that Abbott touched her breasts and her vagina and, on one occasion, placed her on top of him and moved her up and down....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 20 Fla. L. Weekly Fed. D 1555
...3.510, 3.490, this is nonetheless an essential element of all such lesser included offenses as a matter of judicial implication. 1 First, Florida case law strongly supports this conclusion. In Ray v. State,
403 So.2d 956 (Fla. 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 permissible lesser included offense of the crime for which he was charged."
403 So.2d at 959....
...
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....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2006 WL 2088322
...The standard of conclusiveness and probability is less than that required to support a conviction.' " Chavez v. State,
832 So. 2d 730, 747 (Fla. 2002) (quoting Walker v. State,
707 So. 2d 300, 312 (Fla. 1997)). Here, the arrest was for an alleged violation of section
800.04, Florida Statutes (1995), which makes it unlawful for a person to commit a lewd, lascivious, or indecent assault or act upon a child....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal
...Before CHARLES CARROLL, C.J., and BARKDULL and HENDRY, JJ. PER CURIAM. By two informations the appellant was charged with having committed a crime against nature and a lewd, lascivious or indecent assault upon two minors under the age of 14 years, in violation of § 800.01 and § 800.04, Fla....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 1995 WL 3017
...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)....
...and is different from, the common-law rule for computing the time in which an act must be performed. See supra note 3. [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)....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1993 WL 8919
...He argues that the state failed to charge or prove physical injury to the victims in this case. We agree and reverse and remand for resentencing. The information charged appellant with two counts of lewd and lascivious assault on a child under the age of sixteen years in violation of section 800.04, Florida Statutes (1987)....
CopyCited 9 times | Published | Florida 5th District Court of Appeal
...s this construction. [8] We see no reason not to adopt the same view for Florida's Rule
90.801(2)(a). [9] Accordingly, the judgment appealed is AFFIRMED. FRANK D. UPCHURCH, Jr. and COWART, JJ., concur. NOTES [1] §
794.011(2), Fla. Stat. (1981). [2] §
800.04, Fla....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2003 WL 282928
...*1104 Jeffrey Sullivan of Stidham & Stidham, Bartow, for Appellant. Charlie Crist, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee. CASANUEVA, Judge. Adan Loredo appeals three convictions for lewd, lascivious, or indecent assault in violation of section 800.04(1), Florida Statutes (1997), asserting two grounds for reversal....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 28 Fla. L. Weekly Fed. D 422
...Bruno appeals an order summarily denying his timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The motion raises several claims, but only two merit discussion on appeal. We hold that his sentence for lewd and lascivious assaults in violation of section 800.04, Florida Statutes (1997), is illegal, and must be set aside on remand, insofar as it requires him to submit to castration....
...The trial court has not attached portions of the record to its order that conclusively refute this claim. We therefore reverse and remand on this claim, as well. We affirm otherwise. I. After he was charged with five counts of lewd and lascivious assault in violation of section 800.04, Florida Statutes (1997), the state proposed a plea bargain under which Mr....
...Bruno accepted the state's offer and elected the latter option. The trial court then pronounced a sentence of 188 months' incarceration and ordered that he undergo surgical castration. II. As the state concedes on appeal, no statute authorized castration, chemical or surgical, for convictions under section 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. State,
789 So.2d 1032, 1033 (Fla. 1st DCA 2001) (en banc) (upholding a conviction under section
800.04 based on a "verbal interchange with the victim")....
...a agreement. See Williams v. State,
500 So.2d 501 (Fla.1986)."). Because neither section
794.0235(1), Florida Statutes (1997), nor any other provision of Florida law authorizes castration as punishment for lewd and lascivious conduct in violation of section
800.04, Florida Statutes (1997), appellant's sentence is illegal to the extent it purports to require his castration....
CopyCited 9 times | Published | Florida 4th District Court of Appeal
...This is an appeal from a final judgment and sentence imposed by the Court of Record for Broward County, Florida. The case began with an information which alleged that the defendant, Sam Dodd, Jr., on 29 June 1968 committed the unlawful act of fondling a child as proscribed by Section 800.04, F.S....
CopyCited 9 times | Published | Supreme Court of Florida | 2008 WL 5245686
...instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const. Previously in case number SC05-1434, the Committee proposed six new instructions pertaining to lewd and lascivious conduct. All six instructions were based upon crimes set forth in section 800.04, Florida Statutes (2006), entitled "Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age." Two of the proposed instructions, instructions 11.10(a) (Lewd or Lascivious Battery (Engaging in S...
...The instructions as set forth in the appendix [2] shall be effective on the date that this opinion becomes final. It is so ordered. QUINCE, C.J., and WELLS, ANSTEAD, PARIENTE, LEWIS, and CANADY, JJ., concur. POLSTON, J., did not participate. APPENDIX 11.10(c) LEWD OR LASCIVIOUS MOLESTATION § 800.04(5), Fla....
...The defendant's ignorance of victim's age, victim's misrepresentation of [his] [her] age, or the defendant's bona fide belief of (victim's) age is not a defense to the crime charged. Lesser Included Offenses -------------------------------------------------------------------------- LEWD OR LASCIVIOUS MOLESTATION 800.04(5) -------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA....
...--------------------------------------------------- Unnatural and lascivious act
800.02 11.8 -------------------------------------------------------------------------- Comment This instruction was adopted in 2008. 11.10(d) LEWD OR LASCIVIOUS CONDUCT §
800.04(6), Fla....
...The defendant's ignorance of (victim's) age, (victim's) misrepresentation of [his] [her] age, or the defendant's bona fide belief of (victim's) age is not a defense to the crime charged. Lesser Included Offenses -------------------------------------------------------------------------- LEWD OR LASCIVIOUS CONDUCT 800.04(6) -------------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA....
...------------------------------ Unnatural and lascivious act
800.02 11.8 -------------------------------------------------------------------------- Comment This instruction was adopted in 2008. 11.10(e) LEWD OR LASCIVIOUS EXHIBITION PRESENCE OF CHILD §
800.04(7)(a), Fla....
...b. (Defendant) was less than 18 years of age at the time of the offense. Definitions. The words "lewd" and "lascivious" mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act. § 800.04(1)(a), Fla....
...harm on another or receiving such harm oneself. §
847.001(15), Fla. Stat. "Sexual bestiality" means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. §
800.04, Fla....
...her age, or the defendant's bona fide belief of (victim's) age is not a defense to the crime charged. Lesser Included Offenses ----------------------------------------------------------------------- LEWD OR LASCIVIOUS EXHIBITION PRESENCE OF CHILD 800.04(7)(a) ----------------------------------------------------------------------- CATEGORY ONE CATEGORY TWO FLA....
...b. (Defendant) was less than 18 years of age at the time of the offense. Definitions. The words "lewd" and "lascivious" mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act. § 800.04(1)(a), Fla....
...-------------------------------------------------------- Attempt
777.04(1) 5.1 ------------------------------------------------------------------ Comment This instruction was adopted in 2008. For offenses occurring prior to October 1, 2008, refer to section
800.04(7)(b), Florida Statutes (2007)....
...of instruction 11.10(c) as proposed by the Committee has been modified to add the word "intentionally." Additionally, due to recent legislation moving the statutory language setting forth the crime of lewd and lascivious exhibition over a computer service from section
800.04(7)(b) to section
847.0135(5), Florida Statutes (2008), see ch.2008-172, §§ 3-4, Laws of Fla., the statutory reference contained in the title and the table of lesser included offenses for instruction 11.10(f) has been corrected and a comment has been added....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1999 WL 770618
...We conclude that the court did not err in its disposition of Appellant's motion to discharge his counsel. 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....
...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....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1989 WL 133063
...d offense. We deny the petition and remand this matter for trial. 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). The state's delay in filing these charges was due to the victim's delay in reporting the incident. On June 26, 1989, the state amended the information to charge petitioner with violation of section
800.04, Florida Statutes (1983)....
...riminal charges 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....
...secution, 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....
...unishment. The state's amendment struck its reference and alleged that the alleged victim was "under the age of fourteen," the 1983 language, rather than "under the age of sixteen," the 1984 version. In fact, the amendment citing the 1983 version of section 800.04, Florida Statutes, *221 expanded petitioner's defense by allowing him to raise the defense of consent and lack of chastity which the legislature abolished in the 1984 amendment....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1999 WL 992726
...Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellee. *1176 PER CURIAM. Richard N. Foburg appeals his convictions of handling and fondling C.U., a child under the age of sixteen, in violation of section 800.04(1), Florida Statutes (1995); transmitting or showing the minor C.U....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1989 WL 57226
...on
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 Statutes (1985); and count V alleged child abuse in violation of section
827.04, Florida Statutes (1985)....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2002 WL 832199
..., 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. Stat. (1989). [2] §
800.04, Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1990 WL 68728
...The sole issue is whether a defendant's ignorance of the victim's age constitutes a viable defense. For the same public policy reasons that were set forth in our recent decision State v. Sorakrai,
543 So.2d 294 (Fla. 2d DCA 1989), dealing with a violation of section
800.04(2) (lewd assault upon a child), we hold that it does not....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2000 WL 276029
...We reverse. Appellant was charged by information with committing a number of lewd assaults on a child under the age of twelve between January 1, 1993 and December 31, 1994. A jury found him guilty of three lewd assaults which were violations of what is now section 800.04(1), Florida Statutes, for tongue-kissing the child, and one lewd act which is a violation of what is now section 800.04(2), for rubbing his crotch against the victim's crotch and buttocks while both were clothed....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 1996 WL 346929
...We reverse for the reasons which follow. The State filed a petition for delinquency against J.M. after he was charged with sexual battery upon a minor. J.M. entered an admission to the reduced charge of lewd and lascivious act upon a person under the age of 16 pursuant to section 800.04, Florida Statutes (1993)....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2004 WL 1697711
...Somervell made certain pretrial admissions reflecting that while he did attempt to commit a lewd and lascivious act on D.Z., he was prevented from doing so. Mr. Somervell was tried on a charge of touching a child under 16 in a lewd and lascivious manner, in violation of section 800.04(6)(a)(1) and (6)(b), Florida Statutes (2001)....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 1990 WL 98592
...Bernard Berman, Fort Lauderdale, for appellee. Before NESBITT, JORGENSON and GODERICH, JJ. PER CURIAM. The state appeals an order sealing and expunging defendant's 1985 criminal record of an arrest and plea of guilty to the lewd and lascivious assault of a minor under section 800.04, Florida Statutes (1985)....
...In 1989, the defendant filed a petition to expunge or seal his 1985 criminal history. The state objected to expungement, arguing that section 943.058(9), Florida Statutes (Supp. 1988), expressly forbids expungement of a criminal record relating to a violation of section 800.04 when, as here, the victim was under age eighteen and the defendant pled or was found guilty....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2001 WL 194055
...Prior to sentencing, Harold Graham sought to withdraw his plea because it was based on defense counsel's mistaken advice. The trial court denied the motion and sentenced Graham for lewd and lascivious conduct in the presence of a child under sixteen, a second-degree felony in violation of section
800.04(4), Florida Statutes (1997), and failure to report, a second-degree misdemeanor in violation of sections
39.201 and
39.205, Florida Statutes (Supp.1998)....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1995 WL 552361
...credit for time served in county jail and forfeiture of accumulated gain time. In 1988, the state filed an information charging appellant with sexual battery and lewd or lascivious act upon a child under the age of sixteen, offenses proscribed under section 800.04, Florida Statutes (1987)....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2003 WL 22136076
...In Ray, the defendant was charged with sexual battery with physical force not likely to cause serious personal injury. See §
794.011(5), Fla. Stat. (1975). The defendant was convicted of lewd assault, which the trial court submitted to the jury as a lesser included offense of the sexual battery. See §
800.04, Fla....
...(1975); Ray,
403 So.2d at 958. Both of these crimes instructed on by the trial court were second degree felonies. Lewd assault was improperly given as a permissive lesser included offense "because the information did not contain all the elements specified in section
800.04." Ray,
403 So.2d at 959....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 2108
...ence of a five year old girl. For this one act the defendant was convicted of three statutory offenses: exposure of sexual organs (§
800.03, Fla. Stat.); lewd and lascivious behavior (§
798.02, Fla. Stat.); and lewd act in the presence of a child (§
800.04, Fla....
...ription of the acts prohibited in these penal statutes because the statutes describe the prohibited conduct by vague words, such as, "behavior", "expose", and "act." All qualifying or limiting words, such as, "lewd" and "lascivious" (§§
798.02 and
800.04), "vulgar" and "indecent" (§§
800.03 and
800.04), and "open" and "gross" (§
798.02), are too indefinite to describe, limit or restrict the conduct prohibited by each statute to some exclusive identifiable type or area of activity or conduct that does not overlap and does not include acts or conduct also prohibited by one or more of the other statutes....
...convictions for "the same offense" is fundamental error ( Johnson v. State,
460 So.2d 954 (Fla. 5th DCA 1984)). Accordingly, the two misdemeanor convictions (§§
798.02 and
800.03, Fla. Stat.) should be reversed and the one felony conviction under section
800.04, Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ. PER CURIAM. Defendant-appellant was informed against, tried by jury, convicted, and sentenced to ten (10) years imprisonment for lewd and lascivious conduct upon a female child under the age of fourteen (14) [Fla. Stat. § 800.04, F.S.A.]....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...Allbritton, Asst. Atty. Gen., Raymond T. McNeal, Asst. State Atty., for appellant. John E. Futch, Fore & Futch, P.A., Ocala, for appellee. SMITH, Judge. The State appeals from a trial court order arresting judgment on Cadieu's conviction for violation of Section 800.04, Florida Statutes (1975), providing: "Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner ......
...However, the informations are, I think, materially different. Swanboro was charged by an information with "a lewd and lascivious act in the presence of children under the age of fourteen years, to wit: in the presence of Ola Artie Pittman and Ann Weems, without intent to commit rape upon such children (Sec. 800.04 1943) contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida." The information in this case charged that Cadieu did "unlawfully handle, fondle or make an assault upon [name...
CopyCited 7 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 629, 2009 Fla. LEXIS 1948, 34 Fla. L. Weekly Fed. S 629
...Age of Victim The victim was ____ years of age at the time of the offense. Age of Defendant The defendant was ____ years of age at the time of the offense. Relationship to Victim The defendant is not the victim's parent or guardian. Sexual Activity [F.S. 800.04(4)] The offense ____ did ____ did not involve sexual activity. Use of Force or Coercion [F.S. 800.04(4)] The sexual activity described herein ____ did ____ did not involve the use of force or coercion. Use of Force or Coercion/unclothed Genitals [F.S. 800.04(5)] The molestation ____ did ____ did not involve unclothed genitals or genital area....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 2382
...an be a lesser included offense of sexual battery. [2] In this case, I think it was a lesser included offense of the sexual battery charge and it was therefore error for the trial court not to have given the jury appellant's requested instruction on section 800.04....
...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....
...ny lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery . .. . (Emphasis supplied). In my view, the conduct admitted to by appellant in this case equates to the crime defined in section 800.04(3) and as defined by the Legislature, it is a lesser included offense of sexual battery....
...tice throughout the state: Whether 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....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1998 WL 210767
...ver 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")....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 2004 WL 584685
...y, where all of these charges arose out of the same criminal episode. We find merit to his claim and reverse and *280 remand with instructions that three of the convictions and sentences be vacated. Cabanela was charged by amended information, under section 800.04, Florida Statutes (1995), with four counts of lewd assault upon a child under the age of sixteen on August 1, 1996 as follows: Count Isexual battery by placing his mouth in union with the vagina of the victim and/or placing his tongu...
...Vitale,
447 U.S. 410, 415,
100 S.Ct. 2260,
65 L.Ed.2d 228 (1980). See also Scalf v. State,
573 So.2d 202, 203 (Fla. 1st DCA 1991) (same). Cabanela therefore argues that his multiple convictions and sentences for lewd assault upon a child pursuant to section
800.04, Florida Statutes (1995), were violative of double jeopardy where they were committed in a single criminal episode....
...The State charged the defendant with a total of four different counts based upon its assertion that the touching of each separate body part constituted a separate offense. Id. The Second District began its analysis by noting that our supreme court, in State v. Hightower,
509 So.2d 1078 (Fla.1987), had observed that section
800.04 as then worded [1] contemplated "that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious." Morman,
811 So.2d at 717 (quoting Hightower,
509 So.2d at 1079)....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1993 WL 84940
...The willingness or consent of the child is not a defense to this first-degree felony. § 794.041(3), Fla. Stat. (1989). At the jury instruction conference, defense counsel argued that his client was entitled to an instruction on the offense of lewd and lascivious act as a lesser included offense to these charges. Section 800.04, Florida Statutes (1989), pertaining to lewd and lascivious acts, punishes [a]ny person who ......
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1994 WL 81814
...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)....
...usive based on State v. Hightower,
509 So.2d 1078 (Fla. 1987). In Hightower, the supreme court held the crimes of sexual battery and lewd and lascivious assault to be mutually exclusive based on the statutory definition of each crime: As now worded, section
800.04 [the statute proscribing lewd and lascivious behavior], contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section
800.04 makes it clear that these particular crimes are mutually exclusive....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1993 WL 72060
...Having done so, we adhere to the view that the evidence was legally insufficient to convict the defendant. We note that in the present case the State could have made the main charge against defendant the offense of lewd, lascivious or indecent act upon or in the presence of a child, in violation of section 800.04, Florida Statutes (1989)....
...[3] A violation of paragraph
794.011(4)(a) is a first degree felony. Under that statute, consent is a defense to the charge. At trial the jury was also instructed on the permissive lesser included offense of lewd, lascivious, or indecent assault upon or in the presence of a child in violation of section
800.04, Florida Statutes (1989), a second degree felony....
...is deferred for consideration in the next section. [11] That holding therefore excludes the possibility of reducing the charged offense to the permissive lesser included offense of lewd, lascivious or indecent assault or act upon a child pursuant to section 800.04, Florida Statutes (1989)....
...1st DCA 1991), is pertinent, that case involved the entirely distinct issue of consent to a search under the Fourth Amendment. [15] The state of defendant's knowledge is pertinent for purposes of the offenses of sexual battery and battery. Consent is not an issue, and lack of knowledge of age is not a defense, under section 800.04, Florida Statutes (1989) (lewd, lascivious, or indecent assault or act upon or in presence of child)....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...(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. The jury found the appellant guilty of committing a lewd and lascivious act as proscribed by § 800.04, Fla....
...xual 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. He was convicted of committing a lewd and lascivious act as proscribed by Section 800.04, Florida Statutes (1975)....
...4th DCA 1977). The crime of which the appellant was convicted was not a category four lesser included offense because the information contained no allegation that the person upon whom the battery was inflicted was under the age of fourteen years as specified in Section 800.04....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1995 WL 421258
...Because we *390 conclude that the admission of these statements constituted harmful error, we reverse and remand for a new trial. The state charged appellant in count one of a criminal information with committing a lewd and lascivious assault on a child in violation of section 800.04(1), Florida Statutes (1991), alleging that the incident occurred between September 1 and November 30, 1991....
...0.403. Reversed and remanded for new trial with directions. RYDER, A.C.J., and SCHOONOVER, J., concur. NOTES [1] The jury acquitted appellant of a second count charging him with committing a lewd and lascivious act in the presence of the same child. § 800.04(4)....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2001 WL 43092
...Golden, Assistant Attorney General, Daytona Beach, for Appellee. GRIFFIN, J. Travies E. Boutwell ["Boutwell"] complains on appeal that the trial court erred in failing to allow him to withdraw his plea. In October 1998, the State charged Boutwell with violation of section 800.04, Florida Statutes, lewd or lascivious assault upon a child under sixteen years of age....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1994 WL 30334
...Gen., Tallahassee, for appellee. ALLEN, Judge. The appellant appeals from his convictions and sentences on four counts of attempting to handle, fondle, or make an assault upon a child under the age of 16 years in a lewd, lascivious or indecent manner, as proscribed by section 800.04(1), Florida Statutes (Supp....
...The girls then walked to a park where they would be around other people. The appellant then drove past the park. We conclude that the undisputed facts relating to the first incident fail to establish a prima facie case against the appellant of attempting to commit the offense proscribed by section 800.04(1)....
...does not constitute a direct movement toward a specific purpose of handling, fondling, or assaulting the girls. We conclude, however, that the nature of the appellant's language and conduct in the second incident does fall within the proscription of section 800.04(1)....
...ERVIN and LAWRENCE, JJ., concur in part and dissent in part with written opinions. ERVIN, Judge, concurring and dissenting. Although I agree with Judge Allen to reverse appellant's convictions on Counts I and II of the information, I would also reverse his convictions as to Counts III and IV. Section 800.04(1), Florida Statutes (Supp....
...ulting the girls, and any conclusion that such occurred, based on the facts of this case, is purely speculative. Regardless of how prurient and reprehensible Smith's behavior may seem, it did not, in my judgment, constitute an attempted violation of section 800.04(1)....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 622
...Gen., Daytona Beach, for appellee. COBB, Judge. William Senior appeals his sentence of five years' incarceration imposed after the trial court granted the state's motion to correct sentence. Appellant was charged with lewd and lascivious assault upon a child in violation of section 800.04(1), Florida Statutes (1985), and subsequently pled guilty to attempted lewd and lascivious assault on a child....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1993 WL 502610
...Williams made her hold his penis, move her hand back and forth, and use a vibrator on him. K.S. also repeated her description of Williams' ejaculation. Williams was arrested and charged by information with lewd, lascivious or indecent assault upon a child under sixteen years of age. § 800.04, Fla....
...ed." State v. Wimberly,
498 So.2d 929 (Fla. 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] ....
...REVERSED and REMANDED for further proceedings consistent with this opinion. JOANOS and MINER, JJ., concur. NOTES [1] K.S. spoke to her father's live-in girlfriend, as well as her father and Detective Coxen, about the incident. [2] Richardson v. State,
246 So.2d 771 (Fla. 1971). [3] Section
800.04 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 actual or simulated sexual intercourse, deviate sexual intercourse, sexu...
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 19373, 2008 WL 5352103
...State,
899 So.2d 1257, 1259 (Fla. 4th DCA 2005)). Under section
948.30, Florida Statutes, the trial court was required to impose electronic monitoring as a mandatory condition of probation because of Grosso's prior convictions for violations of Chapter 794 and Section
800.04, Florida Statutes, and his new offense....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 19771, 2009 WL 4877710
...Joshua David Brown, in his petition filed in accordance with Florida Rule of Appellate Procedure 9.141(c), alleges that his appellate counsel was ineffective when he failed to argue that two of Brown's three convictions for lewd or lascivious offenses in violation of section 800.04, Florida Statutes (2005), are prohibited by double jeopardy considerations....
...We agree that appellate counsel was ineffective in failing to raise the double jeopardy issue, and we conclude that Brown is entitled to a belated direct appeal on this issue only. Brown was charged in a three-count information with one count of lewd or lascivious battery in violation of section *79 800.04(4)(a) and two counts of lewd or lascivious molestation in violation of section 800.04(5)(a)....
...The digital penetration and the placement of the victim's hand on Brown's penis were charged in counts two and three, respectively. At the time of the direct appeal, this case was governed by our decision in Gisi v. State,
848 So.2d 1278 (Fla. 2d DCA 2003). Gisi was charged with twelve violations of section
800.04, Florida Statutes (1997). [1] Each of the four separate episodes of sexual activity contained a violation of section
800.04(2) based on penile penetration or union with the vagina of the victim. Each episode also contained two violations of section
800.04(1) based on the union of Gisi's mouth with the sexual organ of the victim and on Gisi's digital penetration of the victim's vagina....
...crete for them to be deemed separate offenses within the episode. Thus we conclude that appellate counsel's performance was deficient when he failed to argue that two of Brown's convictions were prohibited by double jeopardy considerations. However, section
800.04 was extensively redrafted in 1999 and Brown, unlike Gisi, was charged under the amended statute. Subsequent to our decision in Brown, the supreme court in State v. Meshell,
2 So.3d 132 (Fla.2009), considered *80 whether two convictions for lewd and lascivious battery under section
800.04(4)(a), Florida Statutes (2006), [2] that were committed in a single criminal episode were violative of the prohibition against double jeopardy....
...ted by double jeopardy considerations. Id. at 135-36. Accordingly, the supreme court determined that "[b]ecause the definitions of the proscribed sexual acts are identical, the same double jeopardy analysis for the sexual battery also applies to [subsection 800.04(4)(a) of] the lewd and lascivious battery statute." Id. at 136. The court then held that Meshell's two convictions for violations of section 800.04(4)(a) were not prohibited by double jeopardy considerations. Id. The court, however, specifically stated that its review of the double jeopardy issue was limited only to section 800.04(4)....
...we must apply the current law to determine whether Brown is entitled to relief on the issue raised. See Green v. State,
18 So.3d 656 (Fla. 2d DCA 2009). As noted, Brown was convicted of one count of attempted lewd and lascivious battery pursuant to section
800.04(4)(a) and two counts of lewd and lascivious molestation pursuant to section
800.04(5)(a). The reasoning of Meshell does not apply to convictions under section
800.04(5)(a) because that section prohibits lewd and lascivious touching and proscribes sexual acts that are different from the acts that are proscribed by the sexual battery statute. Because the supreme court has not addressed the double jeopardy issue in the context of section
800.04(5)(a), we conclude that Brown is entitled to legal representation to argue his double jeopardy claim....
...outlined above. Appellate counsel shall, within thirty days from the date of the appointment, file a new notice of appeal and reference this opinion in the notice of appeal. Petition granted. ALTENBERND, WHATLEY, and WALLACE, JJ., Concur. NOTES [1] Section 800.04 was extensively redrafted in 1999. Ch. 99-201, § 6, at 1187-89, Laws of Fla. [2] There is no difference between the 2005 and 2006 versions of section 800.04(4)(a)....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1988 WL 81550
...Each count charged that he "did handle, fondle or make an assault upon [the named victim], a child under the age of 16 years, in a lewd, lascivious or indecent manner by willfully exposing his sexual organ to her in a lewd manner, contrary to the provisions of Section 800.04, Florida Statutes." He contends that the trial court erred (1) in denying his motion for judgment of acquittal on the recited charge because the evidence was legally insufficient to prove a lewd assault, and (2) in excluding certain evidence....
...Pictures were taken of him and later shown to the girls. They identified Lifka's picture as the man in the car, and again identified him at trial. The police officer arrested Lifka upon charges of committing a "lewd and lascivious act in the presence of a child" in violation of *373 section 800.04, Florida Statutes (1985), which provides: Any person who: (1) Handles, fondles or makes an assault upon any child under the age of 16 in a lewd, lascivious, or indecent manner; (2) Commits an act defined as sexual battery under s....
...gree, 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. Although the investigating officer had charged Lifka under subsection
800.04(3), relating to the commission of lewd acts, as the basis for arrest, the prosecuting attorney, for reasons not made apparent in the record or in the briefs, elected to charge Lifka under the wording of subsection
800.04(1) by alleging lewd and lascivious assaults, and to try the case solely on that legal theory. [1] There being no evidence of handling or fondling, the state argues the sufficiency of the evidence to support the conviction entirely upon the premise that it proved lewd assault in violation of section
800.04(1)....
...the matter go to the jury. [2] The trial court, with the state's concurrence, instructed the jury on the lesser included offense of indecent exposure under section
800.03. The state did not request any instruction on the criminal offense defined in section
800.04(3), and throughout the trial (and this appeal) has steadfastly adhered to the position that this is an assault case....
...hearing on defendant's post trial motions. Judge Parsons, who was then assigned to the case, denied all post-trial motions. [3] We hold that the state's evidence was legally insufficient to prove the offense of lewd and lascivious assault defined in section
800.04(1), as charged in the information. Regardless of whether the evidence could be held to prove the commission of a lewd or lascivious act in the presence of a child in violation of section
800.04(3), see, e.g., Egal v. State,
469 So.2d 196 (Fla. 2d DCA), pet. for rev. denied,
476 So.2d 673 (Fla. 1985), the state has at all times insisted upon charging and trying this case as one involving a lewd assault proscribed by section
800.04(1). The state requested no instruction based on section
800.04(3)....
...Due to the absence of any evidence of an overt threat, as defined in the instructions, we are compelled to conclude that the defendant's conduct did not constitute an assault. Because the state has chosen not to charge and try the defendant for committing a lewd or lascivious act in the presence of a child under section 800.04(3), we cannot consider whether the evidence would be sufficient to sustain a conviction under that section....
...bmitted to the jury at the state's request consistent with its theory of guilt, and the state's arguments in support of conviction made on appeal. At no time has the state suggested that this conviction should or could be sustained as a violation of section 800.04(3)....
...he act of exposure on February 4 and again on February 22 would constitute two offenses, not four separate offenses as charged in the information. Cf. State v. Ell-Gee, Inc.,
255 So.2d 542 (Fla. 3d DCA 1971). The judgment of conviction for violating section
800.04(1) and the sentence imposed thereon is reversed, and the case is remanded for entry of a judgment of conviction and sentence for violation of section
800.03 consistent with this opinion....
...fear in the mind of the victim that she was threatened with imminent violence to her person. I strongly disagree with the majority that defendant committed no overt acts sufficient to demonstrate a threat to the victim. It is highly significant that Section 800.04, Florida Statutes, was specifically designed to protect children under the age of 16....
...Lewd assault on a child is not a specific intent crime, and the intent of the defendant can be imputed from the conduct and circumstances. Harris v. State,
418 So.2d 416 (Fla. 1st DCA 1982), review denied,
426 So.2d 26 (Fla. 1983); Egal v. State,
469 So.2d 196 (Fla. 2d DCA 1985), review denied,
476 So.2d 673 (Fla. 1985). Section
800.04, Florida Statutes, is written to encompass acts involving victim contact, as well as acts which do not involve victim contact....
...What happened after he did that? What did you do? A I turned around and saw the car. ... . Q ... . When you turned around and you saw the car, it revved its engine, how far away were you from it? A About five feet. [emphasis added]. NOTES [1] One reason for charging assault under section 800.04(1) rather a lewd act under section 800.04(3) may be that a charge of lewd assault focuses on the person assaulted so that a separate charge would lie as to each victim on both occasions, supporting a total of four felony charges; whereas a charge of committing a lewd act in th...
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2006 WL 2191322
...However, we write to explain why we have rejected Khianthalat's argument that he was wrongly denied a jury instruction on simple battery. The State charged Khianthalat with nine counts of committing a lewd, lascivious, or indecent act upon a child twelve years of age or older but less than sixteen years of age under section 800.04(4), Florida Statutes (2002)....
...Khianthalat argues that the trial court erred when it refused to give the battery instruction. Battery is a category two permissive lesser-included offense to lewd, lascivious, or indecent act upon a child. Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 800.04....
...es under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, §
794.011. Khianthalat's argument that he was entitled to a jury instruction on battery as a permissive lesser-included offense fails because section
800.04(4), the statute under which he was charged, does not apply to children under the age of twelve; accordingly, the presumption of incapacity to consent is not applicable to offenses under that statute. [4] Section
800.04(4) is intended to criminalize sexual activity with children twelve years of age or older but less than sixteen years of age even where the activity is consensual. See Welsh v. State,
850 So.2d 467 (Fla.2003). [5] "The legislature enacted section
800.04 based on a `morally neutral judgment' that sexual intercourse with a child under the age of sixteen, with or without consent, is potentially harmful to the child." Jones v. State,
640 So.2d 1084, 1086 (Fla.1994) ( quoting Paris Adult Theatre I v. Slaton,
413 U.S. 49, 69,
93 S.Ct. 2628,
37 L.Ed.2d 446 (1973)). The fact that section
800.04 eliminates consent as a defense necessarily implies that the sexual activity may be consensual, but nevertheless, the State, as a matter of policy, will ignore the consent because of its legitimate interest in protecting minors from sexual exploitation....
...5th DCA 2006), the court, relying on the presumption of incapacity where the victim was over the age of twelve, concluded that a defendant was entitled to an instruction on simple battery even though there was no allegation of nonconsensual touching. [5] Until section 800.04 was amended in 1999, it only criminalized consensual sexual activity because the statute specifically excluded sexual battery as a means of perpetrating the act....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...Rehearing Denied September 12, 1978. Michael J. Minerva, Public Defender, for appellant. Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, and Carolyn Snurkowski, Asst. Attys. Gen., for appellee. PER CURIAM. Appellant, convicted below of a violation of Section 800.04, Florida Statutes (1975), appeals his judgment and sentence on the basis of a "Williams rule" violation and on grounds that the State failed to prove the necessary intent to convict him of the crime charged....
...dent and the appellant's statement about his ongoing relations with his step-daughter violated the Williams rule and constituted reversible error. Appellant's next point, regarding the sufficiency of the evidence to prove his guilt of a violation of Section 800.04 because the State did not prove his "negative intent", i.e., his intent not to commit involuntary battery, has recently been discussed in Matava v....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2086340
...In November of that year he traveled from his home near Sioux Falls, South *533 Dakota, to Pinellas County, where the victim resided, and stayed with her in a motel room. Gisi and the girl engaged in sex on four occasions over three days. As to each of these sexual encounters, Gisi was charged with three violations of section 800.04, Florida Statutes (1997): sexual intercourse in violation of section 800.04(2) (counts 1 through 4) and two methods of handling and fondling (using his mouth and fingers) in violation of section 800.04(1) (counts 5 through 12)....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2004 WL 1857604
...The sentence imposed for the burglary charge alleged in count four in violation of section
810.02(2)(a), Florida Statutes (2001), was life imprisonment consecutive to counts one, two and three with HO and PRR classification. The sentence imposed for lewd or lascivious molestation alleged in count five in violation of section
800.04(5), Florida Statutes (2001), was life imprisonment consecutive to count four with HO and PRR classification. The sentence imposed for lewd or lascivious molestation alleged in count six in violation of section
800.04(5), Florida Statutes (2001), was life imprisonment consecutive to count five with HO and PRR classification. The sentence imposed for lewd or lascivious exhibition alleged in count seven in violation of section
800.04(7), Florida Statutes (2001), was thirty years imprisonment consecutive to count six with HO and PRR classification. The sentence imposed for lewd or lascivious conduct alleged in count eight in violation of section
800.04(6), Florida Statutes (2001), was thirty years imprisonment consecutive to count seven with HO and PRR classification....
...hen the convictions arise from conduct committed in a single criminal episode. Cabanela v. State,
871 So.2d 279, 281 (Fla. 3d DCA 2004) ("Cabanela therefore argues that his multiple convictions and sentences for lewd assault upon a child pursuant to section
800.04, Florida Statutes (1995), were violative of double jeopardy where they were committed in a single criminal episode....
...tent to require two separate punishments, the analysis ends and we do not resort to the Blockburger test. In accordance with Cruller, we begin our search for clear legislative intent by examining "the language, structure, and legislative history" of section
800.04. Cruller,
808 So.2d at 203. Most cases involving double jeopardy arguments directed to multiple convictions arising from lewd and lascivious acts allegedly committed in a single criminal episode involved charges brought under the version of section
800.04 prior to its amendment in 1999....
...in separate criminal episodes. Citing the decision in Morman, the court in Gisi explained the reason the courts employed this analysis: The Morman court cited State v. Hightower,
509 So.2d 1078 (Fla.1987), for the proposition that "[a]s now worded, section
800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious." Morman,
811 So.2d at 717 (quoting Hightower,
509 So.2d at 1079)....
...ed in one criminal episode. Therefore, the courts employed the analysis that a separate crime was committed in a separate criminal episode provided there was a temporal break between each act that allowed the defendant to form a new criminal intent. Section 800.04 was substantially amended in 1999 to include a definitions section and separate numbered subsections dealing with lewd or lascivious battery, section 800.04(4); lewd or lascivious molestation, section 800.04(5); lewd or lascivious conduct, section 800.04(6); and lewd or lascivious exhibition, section 800.04(7). The amendments became effective on October 1, 1999. The Legislature expressed the purpose of the amendments in the preamble to chapter 99-201, Laws of Florida, when it stated that in enacting the amendments it was amending s. 800.04, F.S.; creating the offenses of "lewd or lascivious battery," "lewd or lascivious molestation," "lewd or lascivious conduct," and "lewd or lascivious exhibition"; providing definitions; providing penalties; precluding consent from being rai...
...Therefore, with respect to Hunsicker's convictions for the separate crimes of lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition, there is no double jeopardy violation. However, Hunsicker was charged with two counts of lewd or lascivious molestation under section 800.04(5)(a), which provides: A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation. § 800.04(5)(a), Fla....
...Specifically, Hunsicker was charged in Count V with enticing the victim to touch his penis and in Count VI he was charged with putting his mouth on the victim's breast. We do not discern any legislative intent to punish separately each act specified in section
800.04(5)(a) that is committed in the course of one criminal episode, and our analysis under the Blockburger test found in section
775.021(4) does not lead us to conclude that each act committed in one criminal episode is a separate offense....
...r to pause, reflect and form a new criminal intent for each offense. Hence, two separate crimes occurred in separate episodes and Hunsicker *1172 should be appropriately punished for each. We find this double jeopardy analysis for acts charged under section 800.04(5) that are alleged to have occurred in a single criminal episode comports with our holding in King....
...from multiple convictions and punishments for the same offense."); Hayes v. State,
803 So.2d 695 (Fla.2001); Taylor v. State, 29 Fla. L. Weekly D1040 (Fla. 2d DCA Apr.28, 2004); Dorsett v. State,
873 So.2d 424 (Fla. 3d DCA 2004). [4] The version of section
800.04 prior to the 1999 amendments was entitled "Lewd, lascivious, or indecent assault or act upon or in the presence of child" and provided in pertinent part: A person who: (1) Handles, fondles, or assaults any child under the age of 16 yea...
...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). [5] In King, we applied this analysis to a defendant who, like Hunsicker, was charged with two counts of lewd or lascivious molestation for acts that occurred after the effective date of the amended version of section 800.04....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2005 WL 900590
...Michael Pezzo appeals his judgment and sentence imposed following his nolo contendere plea to the second-degree felony offense of lewd and lascivious molestation of a child younger than 16 but older than 12, as charged in the state's second amended information. See § 800.04(5)(c)(2), Fla....
...Pezzo, a 21-year-old airman who had consumed alcohol, became amorous on a beach with an intoxicated girl who was only 15 years of age. He was arrested and charged with lewd and lascivious battery, a charge which required the state to prove that union or penetration occurred. See § 800.04(1)(a), (4), Fla....
...The state brushed aside these errors as merely "typographical" and, over defense objection, the state was allowed to file a second amended information which alleged that Pezzo committed lewd and lascivious molestation against a person older than 12 but younger than 16. See § 800.04(5)(c)(2), Fla....
CopyCited 7 times | Published | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 453, 2017 WL 1366131, 2017 Fla. LEXIS 828
...ve 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....
...938.10 Additional court cost imposed in cases of certain crimes against minors.— (1) If a person pleads guilty or nolo contendere to, or is found guilty of, regardless of adjudication, any offense against a minor in violation of s.
784.085, chapter 787, chapter 794, s. 796.03, s.
800.04, chapter 827, s....
CopyCited 7 times | Published | Supreme Court of Florida | 1951 Fla. LEXIS 1292
...Ervin, Atty. Gen. and Reeves Bowen, Asst. Atty. Gen., for appellee. TERRELL, Justice. The appellant was tried and convicted on an information charging that he did lewdly and lasciviously fondle a female child under the age of fourteen years, contrary to Section 800.04, F.S.A....
CopyCited 6 times | Published | Court of Appeals for the Eleventh Circuit | 2014 U.S. App. LEXIS 18297, 2014 WL 4724697
...testified and recounted his interactions with Mathis in
detail. In addition, the Government introduced a copy of Mathis’s 1995 judgment
from the Circuit Court for Leon County, which showed that he entered a plea of
nolo contendere to lewd and lascivious assault on a child, in violation of § 800.04
of the Florida Statutes. The Government also introduced a judgment from
February 21, 1997, establishing that Mathis was sentenced to 48 months’
imprisonment for violating his probation on his § 800.04 offense.
While Hayes was testifying at trial, Mathis renewed his motion to suppress,
arguing for the first time that the second search of his cell phone in August 2012
was not authorized by the search warrant....
...§ 2260A by
committing the offenses charged in Counts One through Three while he was
required to register as a sex offender under Florida law. 10 The Government
introduced a copy of a judgment demonstrating that, on February 22, 1995, Mathis
was convicted of lewd or lascivious assault on a child, in violation of § 800.04 of
the Florida Statutes....
... Case: 13-13109 Date Filed: 09/24/2014 Page: 32 of 42
October 1, 1997. See Fla. Stat. §
943.0435; Miller v. State,
971 So. 2d 951, 954
(Fla. 5th DCA 2007). Mathis maintains no evidence was introduced at trial
proving when he was released from custody for his §
800.04 offense....
...from which a reasonable jury could have found he was required to register as a sex
offender. The Government introduced a copy of a judgment from February 21,
1997, adjudicating Mathis guilty of violating the term of probation to which he was
sentenced for his § 800.04 conviction....
...for 1,286 days, placing his release date well beyond October 1, 1997. Such a
finding was supported by copies of Mathis’s sex offender registration forms, which
indicated he registered as a sex offender with the State of Florida in January 1999
due to his § 800.04 conviction.
D. Motion for a Mistrial
Mathis argues the district court erred by denying his motion for a mistrial
based on the AUSA’s statement during closing argument that Mathis’s conduct in
2004 was a violation of § 800.04, the same statute under which Mathis was
32
Case: 13-13109 Date Filed: 09/24/2014 Page: 33 of 42
convicted in 1995....
...substantial rights of the
accused.” (internal quotation marks omitted)). The jury was provided a copy of the
indictment which clearly revealed the same information referenced by the AUSA,
namely that Mathis’s conduct in 2004 was illegal under § 800.04 of the Florida
Statutes, and that Mathis had previously violated § 800.04....
...Mathis raises several challenges to the district court’s imposition of a
sentencing enhancement under 18 U.S.C. § 2251(e). Specifically, Mathis contends
the enhancement was inapplicable because the Florida statute under which he was
convicted in 1995, i.e, § 800.04, did not require actual touching or contact with a
minor....
...He
maintains that because he was convicted of lewd or lascivious assault on a minor,
39
Case: 13-13109 Date Filed: 09/24/2014 Page: 40 of 42
and assault can be committed without actual touching, his conviction under
§ 800.04 of the Florida Statutes was not a qualifying offense.13
Mathis’s argument is unavailing....
...Mathis
cannot avoid our clear pronouncement that “the phrase ‘sexual abuse of a minor’
means a perpetrator’s physical or nonphysical misuse or maltreatment of a minor
for a purpose associated with sexual gratification.” Id. Mathis’s prior state
conviction under § 800.04 for lewd or lascivious assault on a child related to the
13
At the time of Mathis’s offense, § 800.04 provided in pertinent part that “[a] person
who . . . [h]andles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious,
or indecent manner . . . without committing the crime of sexual battery, commits a felony of the
second degree.” Fla. Stat. § 800.04(1) (1994).
40
Case: 13-13109 Date Filed: 09/24/2014 Page: 41 of 42
sexual abuse of a minor and the district court did not err by enhancing his sentence
under § 2251(e).
2....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2007 WL 2609392
...touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of A.A., a person less than 12 years of age, or did force or entice A.A. to so touch the defendant, in violation of Florida Statute 800.04(5)(b); ....
...ith did, being 18 years of age or older, intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of A.A., a person less than 12 years of age, in violation of Florida Statute 800.04(5)(b); (A) Ct....
...older, force or entice A.A., a person less than 12 years of age, to intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of the defendant, in violation of Florida Statute 800.04(5)(b); ....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2002 WL 999369
...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....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 576
...did then and there unlawfully handle, fondle or make an assault in a lewd, lascivious or indecent manner upon a child, under the age of fourteen (14) years to wit: [the victim], age (9), years, without intent to commit involuntary sexual battery by TOUCHING OR FONDLING HER PUBIC AREA, contrary to section 800.04, Florida Statutes. Section 800.04 is written in the disjunctive, to encompass acts involving victim contact as well as acts involving no victim contact....
...5th DCA 1985), review granted, No. 67,281 (Fla. Jan. 24, 1986), we held in an identical case that it was proper to assess points for victim injury under these circumstances. We affirm on the basis of Moore. AFFIRMED. DAUKSCH and UPCHURCH, JJ., concur. NOTES [1] § 800.04, Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1995 WL 119227
...Larry Russell Gaines, appellant, was charged by information with sexual battery with a firearm and lewd assault. The jury found appellant guilty of sexual battery (a lesser included offense) and guilty of lewd assault. We affirm the conviction and sentence for sexual battery. The crime of lewd assault is proscribed by section 800.04(1), Florida Statutes (1991)....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 807
...dle, 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: ........
...(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; however, sexual battery does not include an act done for a bona fide medical purpose. Florida Statute 800.04(1) in pertinent part reads: 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; ........
...We certify to the supreme court the following question of great public importance: WHETHER, IN CALCULATING THE SENTENCING GUIDELINES SCORESHEET FOR CATEGORY 2 SEXUAL OFFENSES, POINTS MAY BE ASSESSED FOR PENETRATION, UNDER VICTIM INJURY, IN SENTENCING FOR A CONVICTION UNDER 800.04(1)? REVERSED and REMANDED....
...ZEHMER, J., dissents, with written opinion. ZEHMER, Judge, dissenting. Because I find no error in the trial court's inclusion of forty points for "penetration or slight injury" in sentencing appellant upon his plea of guilty to lewd and lascivious assault in violation of section 800.04, Florida Statutes (1985), I would affirm....
...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 Statute 800.04(1)," O'Bright pled guilty to the lewd assault charge in exchange for the state's dismissal of the sexual battery charge....
...element, was dropped and, further, that since he pled guilty to and was convicted of lewd assault only (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....
...as either primary or additional offense) which includes physical impact or contact" [ see committee note (d)(7) to the December 19, 1985, amendment to rule 3.701(d)(7)], and the record contains evidence to support the level of victim injury scored. 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....
...scribed by this section. The 1984 amendment added subparagraph (2) and changed the language of the last sentence for the expressed purpose of overcoming the effect of the decision in Lanier v. State,
443 So.2d 178 (Fla. 3d DCA 1984), which held that section
800.04, prohibiting lewd and lascivious conduct with children under the age of 14 years did not prohibit acts of sexual intercourse between an adult and an unchaste, consenting child, and ......
...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. When Lanier was decided by the third district court of appeal, section 800.04, Florida Statutes (1981), made it a criminal offense for any person to "handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner ......
...without the intent to commit sexual battery " (emphasis supplied). The information in Lanier charged that the defendant "did unlawfully handle, fondle or make an assault upon [S] by engaging in sexual intercourse, but without the intent to commit Involuntary Sexual Battery, in violation of
800.04."
443 So.2d at 179....
...nvoluntary 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. The district court then noted that the defendant claimed he "intended to commit no crime under Section
800.04" and that "consensual sexual intercourse with an unchaste twelve-year-old female is not a crime under that section." Id. at 181, n. 3. After the 1984 amendment to section
800.04, however, and based explicitly on the legislature's expression of statutory intent in chapter 84-86, the supreme court quashed the third district's decision, holding *389 that "section
800.04 both prior to and subsequent to the 1984 amendment is violated when a male engages in sexual intercourse with a twelve-year-old girl despite the fact that the victim was previously unchaste and the sexual intercourse was consensual." State v. Lanier,
464 So.2d 1192, 1193 (Fla. 1985). Thus, the supreme court implicitly recognized that, since the element of consent was immaterial, the fondling charged in that case was a violation of section
800.04 even though the conduct charged also involved penetration and amounted to sexual battery. Admittedly, the legislature's change of wording from "without the intent to commit sexual battery" 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. But in view of the legislature's forceful expression in the preamble to chapter 84-86 of its intent to include within the ambit of
800.04 offenses acts amounting to sexual 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, 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. [3] As a result, a plea of guilty to a section
800.04 offense should not be construed as precluding the use of penetration during fondling as an element of victim injury to be scored when sentencing for this offense....
...should not be held to operate as a conclusive determination that such penetration did not occur during commission of the offense of lewd assault. Because victim contact, with or without penetration during fondling, is an element of the offense under section
800.04 that may be scored on the guidelines scoring sheet under victim injury, cf. Moore v. State,
469 So.2d 947 (Fla. 5th DCA 1985), the trial court correctly assessed 40 points for penetration under victim injury so long as the *390 record established that fact. I am mindful that O'Bright was charged under
800.04(1) and not
800.04(2), but I do not view that as a critical consideration 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....
...AULT WHEN AN INVOLUNTARY SEXUAL BATTERY CHARGE BASED ON THE SAME OCCURRENCE HAS BEEN DISMISSED AS PART OF THE PLEA AGREEMENT? NOTES [1] Appellant recognizes that scoring victim injury for "contact but no penetration" in sentencing for a violation of section 800.04, Florida Statutes (1983), has been judicially approved in Moore v....
...iod of time that appellant was charged with committing 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....
...ough 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
800.04.
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2008 WL 678657
...Melanie Slaughter, Ocala, for Appellee/Cross-Appellant. ORFINGER, J. The State of Florida appeals the sentence imposed on Leonard Mason following his conviction of lewd and lascivious molestation by a person eighteen years or older on a child less than twelve years of age in violation of section 800.04(5)(a)(b), Florida Statutes (2004)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2001 WL 608990
...ral, for appellant. Robert N. Pelier, for appellee. Before SCHWARTZ, C.J., and SORONDO, J., and NESBITT, Senior Judge. NESBITT, Senior Judge. Marlon Rodriguez was charged with lewd and lascivious acts on a minor under 16 years of age in violation of section 800.04(5), Florida Statutes (1999)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2007 Fla. App. LEXIS 9547, 2007 WL 1753560
...d of unlawful sexual activity involving a victim fifteen years of age or younger where the 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....
...for offenders specified in this section. * * * (3) Effective for a probationer or community controllee whose crime was committed on or after September 1, 2005, and who: (a) Is placed on probation or community control for a violation of chapter 794, s. 800.04(4), (5), or (6), s....
...847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older; (b) Is designated a sexual predator pursuant to s.
775.21; or (c) Has previously been convicted of a violation of chapter 794, s.
800.04(4), (5), or (6), s....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...Loewy, Asst. Atty. Gen., for appellee. Before PEARSON, HAVERFIELD and NATHAN, JJ. PER CURIAM. Paul Forrest Garrard was charged by information with making a lewd, lascivious or indecent assault upon a male minor under the age of 14 years, in violation of § 800.04, Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1412059
...and lascivious molestation of his stepdaughter. Mr. Munro admitted that the molestation occurred on at least three different occasions over a three-week span in 1996. The victim was approximately seven years old. The charged offense, a violation of section 800.04, Florida Statutes (1995), is a second-degree felony....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1993 WL 247135
...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....
...than 12 years of age, in violation of section
794.011(1)-(2). Counts II, IV, VI and VIII charged that Appellant unlawfully handled, fondled, or made an assault on a child under the age of 16 in a lewd, lascivious or indecent manner, in violation of section
800.04(1)....
...The information essentially tracks the language defining "sexual battery" in section
794.011(1)(h), Florida Statutes (1989). Count II alleged he "did unlawfully handle, fondle, or make an assault" on her "in a lewd, lascivious or indecent manner," in violation of section
800.04(1)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1995 WL 443480
...In any event, barring Graham from talking with his stepchildren on the telephone or corresponding with them by mail appears to go beyond reasonable limits. STRIKE special condition of probation; REMAND to trial court for reconsideration. DAUKSCH, J., concurs. GRIFFIN, J., concurs in result without opinion. NOTES [1] § 800.04, Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1991 Fla. App. LEXIS 6573, 1991 WL 120787
...*743 We therefore reverse and remand for a new trial consistent with this opinion. ANSTEAD, J., and WALDEN, JAMES H., Senior Judge, concur. NOTES [1] Below the state objected that such evidence was irrelevant because the defense had no right to put on the victim's lack of chastity, citing section 800.04, Florida Statutes (1989)....
CopyCited 6 times | Published | District Court of Appeal of Florida
credibility. *230 Appellant was charged under Fla. Stat. §
800.04 (1973) with committing a lewd and lascivious act
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1988 WL 6401
...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....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 306
...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. Stat. (1985). [2] §
800.04(1), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...We cannot say that the specification of the exact nature of the crime was surplusage since the consideration of the specification was necessary to determine if a crime against nature had been charged. However, there is no doubt of the guilt of the accused of a lesser offense. Section 800.04, Fla. Stat., F.S.A., denounces lewd, lascivious or indecent assault or act upon a child. [2] The penalty provided in § 800.04 would cover the sentence of the accused. We hold that the crime set forth in § 800.04 may be a lesser included offense of the crime set forth in § 800.01. In this case the elements of an assault on a female child under the age of 14 years in a lewd, lascivious and indecent manner as prohibited by § 800.04 were fully proved. We therefore hold that although the defendant was erroneously found guilty of the crime charged, he was proved guilty of violating § 800.04, Fla. Stat., F.S.A. Accordingly, the adjudication and sentence in this cause are reversed and the cause remanded for an adjudication of guilty under § 800.04, Fla....
...Stat. F.S.A. provides: "Crime against nature; punishment. Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be punished by imprisonment in the state prison not exceeding twenty years." [2] Section 800.04 Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 10966, 2009 WL 2408233
...n a petition alleging ineffective assistance of appellate counsel. See Gisi v. State,
848 So.2d 1278, 1281-82 (Fla. 2d DCA 2003) (holding that appellate counsel was ineffective in failing to argue that certain of Gisi's convictions for violations of section
800.04, Florida Statutes (1997), were barred by the prohibition against double jeopardy)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2000 WL 553926
...This is an appeal from a conviction and sentence in a lewd and lascivious act on a child case. The statute reads "A person who ... Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; ..." commits a criminal act. § 800.04(1), Fla....
...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. Stat. (1993)(criminalizing unnatural and lascivious acts); §
800.04 ("Lewd, lascivious, or indecent assault or act upon or in presence of child"); §
847.001 ("A mother's breastfeeding of her baby is not under any circumstances `obscene'" for purposes of statute criminalizing the dissemination of obscene literature)....
...THOMPSON, J., concurs. ON MOTION FOR CERTIFICATION PER CURIAM. We grant appellant's motion for certification en banc, and certify the following question to be one of great public importance: [1] IN A CASE WHERE A DEFENDANT IS CONVICTED OF A VIOLATION OF SECTION 800.04(1), FLA....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1989 WL 85720
...ame principles are applicable. Accordingly, we vacate the sentence and remand for resentencing consistent with this opinion. AFFIRM Conviction; QUASH Sentence; REMANDED. GOSHORN, J., concurs. DAUKSCH, J., concurs specially without opinion. NOTES [1] § 800.04, Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...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)....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2007 WL 2330927
...Michael Rogers appeals his conviction and sentence for lewd and lascivious battery. We affirm Rogers' conviction without comment, and we affirm his sentence for the reasons we explain. I. Background Rogers was charged with lewd and lascivious battery on a child under sixteen, a felony of the second degree, see § 800.04(4)(a), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...*489 Glenna Joyce Reeves, Asst. Public Defender, for appellant. Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee. WENTWORTH, Judge. Appellant was charged and convicted on two counts of lewd and lascivious assault in violation of § 800.04, Florida Statutes, with consecutive sentences of 15 and 10 years....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1988 WL 81959
...District Court of Appeal of Florida, First District. August 10, 1988. Alan Rosner of Harris, Guidi & Rosner, Jacksonville, for appellant. Robert A. Butterworth, Atty. Gen., Elizabeth C. Masters, Asst. Atty. Gen., for appellee. NIMMONS, Judge. Furlow was convicted of a violation of Section 800.04(2), Florida Statutes, as charged in count I and two counts of simple assault (lesser included offenses of the offenses charged in counts II and III). 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....
...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)....
...ated and set aside; and cause remanded for the entry of an order discharging the defendant from the offense charged in count I. ERVIN and JOANOS, JJ., concur. NOTES [1] We are at a loss to understand why the defendant was charged with a violation of Section 800.04(2) instead of lewd assault (or fondling) under Section 800.04(1), the latter not requiring penetration, and both offenses being second degree felonies.
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1992 WL 80552
...Public Defender, Daytona Beach, for appellee. PER CURIAM. The defendant stands charged below of one count of sexual battery in violation of section
794.011(2), Florida Statutes, and one count of lewd and lascivious act upon a child under the age of sixteen in violation of section
800.04(1), Florida Statutes....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 905
...Public Defender, for appellant. Jim Smith, Atty. Gen., John W. Tiedemann, Asst. Atty. Gen., for appellee. WENTWORTH, Judge. Appellant seeks review of his departure sentence upon conviction of lewd and lascivious assault upon a child, in violation of section 800.04, Florida Statutes....
...im," this court has construed that rationale to be most reasonably confined to sexual battery cases prosecuted under section
794.011(1)(h), Florida Statutes. Kokx v. State,
498 So.2d 534, 535 (Fla. 1st DCA 1986). The statute involved in this appeal, section
800.04, supra, appears to be distinguishable for reasons stated in Kokx....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2004 WL 2173349
...We conclude that such a closure does not amount to fundamental error. A contemporaneous objection is required to preserve the issue for appellate review. I. Defendant-petitioner Edward Jones was found guilty of fifteen counts of lewd and lascivious acts on a minor, his stepdaughter, in violation of section 800.04, Florida Statutes (1997)....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1993 WL 393625
...Pelella, Asst. Public Defender, Daytona Beach, for appellee. THOMPSON, Judge. The state appeals the order dismissing an amended information which charged the defendant/appellee (Mitchell) with a lewd, lascivious, or indecent act upon a child; a violation of section 800.04(1), Florida Statutes (1991)....
...d not attempt to put his hand inside her panties. Mitchell's attorney filed a motion to dismiss the amended information, pursuant to Fla.R.Crim.P. 3.190(c)(4). The grounds for the motion were: (1) the facts alleged failed to establish a violation of section 800.04(1), Florida Statutes (1991), because the facts alleged did not offer sufficient indicia of a "wicked, lustful, unchaste, licentious or sensual design" on Mitchell's part and (2) there were no material disputed facts and the undisputed facts did not establish a prima facie case of guilt against Mitchell....
...The court specifically held that: sexual intercourse between a husband and wife in the presence of a child under fourteen years of age for the purpose of demonstrating to such child the method of procreation of the human race is a lewd and lascivious act and a violation of Fla. Stat. § 800.04, F.S.A....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 21 Fla. L. Weekly Fed. D 2393
...AFFIRMED in part; REMANDED to revise condition of probation. GOSHORN, J., concurs. COBB, J., concurs in part; dissents in part, with opinion. COBB, Judge, concurring in part; dissenting in part. I would simply affirm in all respects based on Graham v. State,
658 So.2d 642 (Fla. 5th DCA 1995). NOTES [1] §
800.04(1), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1990 WL 181557
...hastised for writing letters to her boyfriend. The record reflects that respective counsel debated the possible applicability of Florida's rape shield statute, see §
794.022, Fla. Stat. (1987), to prosecutions for violations of sections 794.041 and
800.04, Florida Statutes, the offenses charged in this case....
...The second issue presented in this appeal concerns the sufficiency of the evidence to support appellant's conviction of each count charged in the amended information. Counts one and two of the amended information charged appellant with violations of section 800.04, Florida Statutes, [2] and counts three through seven charged violations of section 794.041, Florida Statutes....
...NOTES [1] This factor takes on added significance in circumstances such as those presented in this case, where the alleged victim is a young teenager potentially subject to ongoing sexual abuse by one standing in a position of familial authority. [2] § 800.04, Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal
...We find sufficient evidence to support the latter conviction and affirm without further discussion of that issue. The point urged by appellant in regard to his sexual battery conviction is that the trial court erred in refusing to instruct the jury that a lesser included offense thereof is lewd assault as defined by section 800.04, *692 Florida Statutes (1981)....
...It is contended that the alleged conduct of the defendant (oral and vaginal penetration) shows a "wicked, lustful, unchaste, licentious or sensual intent" on the part of the defendant. See Florida Standard Jury Instructions in Criminal Cases, 2d Ed., p. 122 (defining the terms lewd, lascivious and indecent for purposes of § 800.04)....
...eater offense. Conversely, *693 offenses are separate and distinct if each contains an essential element that the other does not." At 1058. An essential element of sexual battery is the intent to commit it; an essential element of lewd assault under section 800.04 is that sexual battery is not intended....
...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. He was ultimately adjudicated delinquent, over objection, of the offense of lewd, lascivious, or indecent assault under section
800.04, Florida Statutes (1979), the crime for which the instruction was requested in the instant case....
CopyCited 5 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 658, 2010 Fla. LEXIS 1936, 2010 WL 4483514
...FACTS AND PROCEDURAL BACKGROUND Jamie Lee Tasker, age thirty-five at the time of the offenses, was charged by information filed in Suwannee County in October 2004 with one count of lewd and lascivious molestation of a female twelve years of age or older but under the age of sixteen, in violation of section 800.04(5), Florida Statutes (2004)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21032047
...Because the basis of the trial court's denial was its mistaken belief that it did not have the legal authority to consider the motion, we treat this appeal as a petition for writ of certiorari and grant the petition. In February 2001 Wesner entered a guilty plea to the offense of lewd act on a child, a violation of section 800.04, Florida Statutes (2000), in exchange for a sentence of fifteen years of sex offender probation....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1993 WL 143872
...Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee. CAMPBELL, Acting Chief Judge. Appellant, James Hallberg, challenges his convictions and sentences totaling twenty-seven years in prison imposed for five counts of committing a lewd act upon a child (§ 800.04, Fla....
...We affirm appellant's convictions, but reverse his sentences and remand for resentencing. 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 sexual activity with a child twelve years of age or older, but less than eighteen years of age, by a person (appellant) in a position of familial or custodial authority with the child (§ 794.041(2)(b)). Count III charged appellant with violating section 800.04(3) (lewd act upon a child) by committing a sexual battery on S.S....
...Count IV of the information charged that the same act alleged in Count III, appellant's penile penetration of the mouth of S.S., constituted the crime of sexual activity with a child by a person in a position of familial or custodial authority with the child (§ 794.041(2)(b)). Count V charged appellant with violating section 800.04(3) (lewd act upon a child) by committing a sexual battery upon S.S....
...The offenses charged in Counts V and VI, while being similar acts, were not necessarily the same act committed at the same time, as S.S. testified that such digital penetration of her vagina took place on at least six different occasions between June 1, 1988 and August 31, 1988. Count VII charged appellant with violating section 800.04(1) (lewd act upon a child) by fondling the breasts of S.S. Count VIII charged appellant with violating section 800.04(1) (lewd act upon a child) by fondling the vaginal area of S.S....
...There is no reason to believe that if the evidence was introduced at trial, it would probably have changed the verdict. Fla.R.Crim.P. 3.600(a)(3). Appellant's fourth and final argument directed toward his convictions is whether the three counts of a lewd act committed on a child (§ 800.04(3)) are lesser included offenses of the three counts of engaging a child in sexual activity by a person standing in position of custodial authority (§ 794.041)....
...In this case, clearly each offense requires proof of an element that the other does not. Section 794.041 requires that the acts prohibited be committed by a person standing 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....
...act not constitute the crime of sexual battery. See State v. Hightower,
509 So.2d 1078 (Fla. 1987). Thus, each offense requires proof of an element that the other does not. Moreover, the testimony of S.S. indicates that the lewd act in violation of section
800.04(3), charged as the offense in Count V (digital penetration of the vagina of S.S....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2001 WL 567626
...EN BANC ALLEN, J. The appellant challenges a conviction entered upon a nolo plea reserving the right to appeal the denial of his motion to dismiss. The motion was filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), and with a contention that § 800.04(4), Fla....
...Considering the appeal en banc in accordance with Florida Rule of Appellate Procedure 9.331(a), we conclude that the factual allegations are sufficient to bring the appellant's conduct within the statutory proscription against the commission of a lewd or lascivious act. Section 800.04(4), Florida Statutes (1997), expressly pertains to one who knowingly commits "any lewd or lascivious act" in the presence of a child under the age of sixteen....
...Noting that he made no motion toward the child and did not hinder her when she got up and left, the appellant asserted that his conduct consisted merely of verbal statements within the privacy of his own home and that these undisputed facts do not establish a prima facie violation of § 800.04(4)....
...OPINION IN WHICH BROWNING, J., CONCURS; PADOVANO, J., DISSENTS WITHOUT OPINION; BROWNING, J., DISSENTS WITH OPINION IN WHICH ERVIN, J., CONCURS. BENTON, J., dissenting. Did speaking in a lewd and lascivious manner in the presence of a child violate section 800.04(4), Florida Statutes (1997), which authorized fifteen years' imprisonment for anybody who "[k]nowingly commit[ted] any lewd or lascivious act in the presence of any child under the age of 16 years," § 800.04(4), Fla....
...ertain whether the issue is truly dispositive.' Phuagnong v. State,
714 So.2d 527, 528 (Fla. 1st DCA 1998)(quoting Zeigler v. State,
471 So.2d 172, 175 (Fla. 1st DCA 1985))." Mylock v. State,
750 So.2d 144, 146 (Fla. 1st DCA 2000). II. By construing section
800.04(4), Florida Statutes (1997), to outlaw lewd or lascivious speech, the majority opinion dishonors at least three canons of statutory construction, viz.: "One of the most fundamental tenets of statutory construction requires that we give...
...ins v. State,
576 So.2d 1310, 1312 (Fla.1991). In order that this power not be usurped by judges (however well meaning), the statutory language the Legislature employs when "creating crimes" must be given its plain and ordinary meaning. Until today, section
800.04(4), Florida Statutes (1997), has been held to apply only to lewd or lascivious acts, not to salacious *1035 language....
...een "sticks and stones" and words. As commonly understood in the context of a penal statute, "`act' or `action' means a bodily movement whether voluntary or involuntary...." Black's Law Dictionary 24 (7th Ed.1999) (quoting Model Penal Code § 1.13). Section 800.04(4), Florida Statutes (1997), uses the word "act" not the phrase "verbal act." Section 800.04(1)-(3), Florida Statutes (1997), proscribed not mere words, but perpetrating acts on, to, or with children, including vaginal penetration by the defendant's penis or its "union with the vagina of the minor victim," Harris v....
...Stone,
677 So.2d 982, 983 (Fla. 5th DCA 1996). As Judge Browning points out, the stipulated facts might more logically support a charge of attempt under one of these provisions than the charge that was in fact brought. What was charged here was a violation exclusively of section
800.04(4), Florida Statutes (1997), which we have construed to exclude anything specifically prohibited by some other statutory provision. See Burnett v. State,
737 So.2d 1106, 1107 (Fla. 1st DCA 1998). Exposing adult genitalia to a child has been held to violate section
800.04(4), Florida Statutes (1997). See Roberts v. State,
620 So.2d 1082, 1082 (Fla. 2d DCA 1993). Otherwise, the apparent function of former section
800.04(4) was to proscribe lewd or lascivious acts perpetrated on a third party in the presence of a child....
...Weekly S174, S175, ___ So.2d ___, ___,
2001 WL 278107 (Fla. Mar. 22, 2001); Delgado v. State,
776 So.2d 233, 240 (Fla.2000). The Florida Supreme Court has applied this legislatively mandated rule of construction to the very language at issue in the present case, then codified as section
800.04(3), Florida Statutes (1987)....
...There "Werner told his wife that he had been masturbating while *1036 caring for the[ir infant] child." Id. Concluding his conviction should be reversed, the court said: Applying the legal as well as the common-sense meaning of the word "presence" to section 800.04(3), leads us to the conclusion that, while the child need not be able to articulate or even comprehend what the offender is doing, the child must see or sense that a lewd or lascivious act is taking place for a violation to occur. Even if we determined that the language of section 800.04(3) is ambiguous, the result would be the same....
..."[W]hen the language [of a criminal statute] is susceptible of differing constructions, it shall be construed most favorably to the accused." §
775.021(1), Fla.Stat. (1987). Based upon this statutory rule of construction, any doubt as to the meaning of "presence" in section
800.04(3) would have to be resolved in Werner's favor....
...ewd or lascivious" speech. III. The Legislature is not without power to outlaw behavior like appellant's. As Judge Browning contends, other subsections of the law in effect at the time may have done just that. The Legislature has, moreover, replaced section 800.04, Florida Statutes (1997), with a new statute that prohibits, among other things, "[s]olicit[ing] a person under 16 years of age to commit a lewd or lascivious act." Ch. 99-201, § 6, at 1188, Laws of Fla. (codified at § 800.04(6)(a)2., Fla. Stat. (1999)). The constitution does not protect speech like appellant's against prosecution under a properly drawn statute. But the only question now before us is whether section 800.04(4), Florida Statutes (1997), applies on these facts....
...If construed in keeping with several decades' precedent and accepted canons of statutory construction alike, it does not. BROWNING, J., dissenting. EN BANC CONSIDERATION I oppose, and I am dismayed by en banc consideration of this appeal. The number of prosecutions for verbal acts under section 800.04(4), Florida Statutes, and similar statutes of other states, the minuscule precedential effect of the majority opinion, comparison of this case with recent cases of exceptional importance that did not receive en banc treatment, the legislative changes to section 800.04(4) in 1999, and a review of authorities covering the exercise of en banc jurisdiction all persuade me that the instant appeal is one that should not be heard en banc under Fla....
...9.331(a) provides two bases for en banc consideration: (1) when it is necessary to maintain uniformity in this court's decisions; and (2) when the case is one of exceptional importance. There exists no conflict between decisions of this court. This conclusion is undebatable, as section 800.04(4) has never been construed by this court to make a verbal act a crime....
...importance under the foregoing principles. The strongest argument against a determination that this case is one of exceptional importance is the number of prosecutions, or lack of prosecutions, of a pure verbal act as a lewd and lascivious act under section 800.04(4) and under similar statutes in other states. Section 800.04 was enacted in 1943, and significantly, no prosecutions for pure verbal acts are reported under that section or under similar statutes in the other 49 states....
...al act has any *1039 unique significance? The answer is, it cannot, unless the majority reasons that its opinion will have a substantial precedential impact. However, any possibility of such impact was removed by the 1999 legislature when it amended section 800.04. The legislature in 1999 amended section 800.04, and under amended section 800.04 a mere verbal act identical to the utterance of Appellant is not a crime unless the utterance is construed as a possible solicitation to a person under 16 years to commit a lewd or lascivious act. Section 800.04(6)(a)(2)(b), Florida Statutes (1999)....
...ever face again absent future legislative action, which cannot be reasonably anticipated in my judgment. In effect, the majority opinion will only constitute a statement that appellant's utterance is condemned and the legislature can legally reenact section 800.04(4). This is hardly a good reason for an en banc decision when the legislature has shown the wisdom to preclude prosecutions for speech not carefully defined by amending section 800.04....
...rds alone as a lewd and lascivious act if clearly stated. Mass. Gen. Laws. Ann. Ch. 272, § 53 (West 2000) (Massachusetts's statute prohibits lewd and lascivious speech and behavior). Indeed, it appears that the Florida Legislature, in 1999, amended section 800.04, Florida Statutes, by making it a felony of the second degree for a person 18 years of age or older to solicit a person under 16 years to commit a lewd or lascivious act. Section 800.04(6)(a)(2)(b), Florida Statutes (1999). My position is not that the legislature could not so provide; it is rather that until the 1999 amendments, it had not proscribed conduct involving only words under section 800.04, nor is there any indication in that statute reasonably suggesting that it has....
...f the two opinions has described just what those facts are, I consider it necessary, for the reasons later stated, to publish in this opinion, the conduct leading up to appellant's conviction for committing a lewd and lascivious act, in violation of section 800.04(4), Florida Statutes (1997)....
...1997 statute is underscored by a comparison of the present facts with those in Smith v. State,
632 So.2d 644 (Fla. 1st DCA 1994), which approved a conviction for attempted handling, fondling, or assaulting a child under the age of 16, proscribed by section
800.04(1), Florida Statutes (Supp.1990), based on a verbal act which is almost identical to that uttered here....
...de subject to punishment for a second-degree felony under subsection (4). It is inconceivable to me that the legislature intended, by reason of the creation of subsection (4), such a bizarre result. As Judge Benton has so forcefully said in dissent, section 800.04 is a penal statute that must be given a strict, rather than a broad, interpretation....
...ion (4) to be a "catchall" of all lewd conduct that may have previously been covered by earlier subsections. For example, the defendant could possibly be charged with the commission of an indecent assault in the presence of a child, prohibited under section 800.04(1)....
...to her, she left the defendant's house. Indeed, an essential element of any assault is the victim's well-founded fear of imminent violence. See Viveros v. State,
699 So.2d 822 (Fla. 4th DCA 1997). It may also be plausible to charge a defendant under section
800.04(3) with an act defined as sexual battery, without committing it, because the verbal statement made to the victim complies with the definition of sexual battery under section
794.011(1)(h)....
...Saunders,
339 So.2d 641 (Fla.1976) (limiting construction of disorderly conduct statute to allow conviction only for use of "fighting words" or words like "fire" shouted in a crowded theater). In my judgment, if this court's en banc opinion proposes to affirm a conviction based on a violation of section
800.04(4), caused by a verbal statement, it should be prepared to cite Florida case law construing such subsection or case law from some jurisdiction having a statute similarly worded to that in subsection (4), rather than draw broadly upon c...
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1999 WL 148030
...ng participant in the incident. Our opinion in State v. Smith,
668 So.2d 639 (Fla. 5th DCA 1996), which perhaps arrived via the "tipsy coachman" route [1] at a correct result, was based on an unsound legal premisei.e., in a prosecution pursuant to section
800.04, Florida Statutes, a victim's willing participation can never be a proper sentencing consideration by the trial court irrespective of the facts of the case....
CopyCited 5 times | Published | Court of Appeals for the Eleventh Circuit | 2015 WL 2215388
...Under the categorical approach, a court must “look to the elements and
the nature of the offense of conviction, rather than to the particular facts” of the
defendant’s record of conviction. Leocal v. Ashcroft,
543 U.S. 1, 7,
125 S. Ct. 377,
381 (2004). 6
Florida Statute
800.04 qualifies as a “crime of violence” within the meaning of U.S.S.G.
§ 4B1.2....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1999 WL 155723
...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. Stat. (1997). [2] See §
800.04(1), Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1993 WL 72061
...According to the information the State had the burden to prove beyond a reasonable doubt that the victim did not consent and was physically helpless to resist. It failed in that burden. On the facts of this case, the State should have charged the defendant with a violation of section 800.04, Florida Statutes (1989), entitled "lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery." Under section 800.04, neither the victim's consent nor the defendant's belief that the victim is sixteen or older is a defense to the crime charged....
...See Green v. State,
580 So.2d 321 (Fla. 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)....
...Under Gould v. State,
577 So.2d 1302 (Fla. 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....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2008 WL 678675
...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)....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 704
...t 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. Stat. (1983). [2] §
800.04, Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1988 WL 57432
...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)....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2001 WL 627612
...Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee. *1270 SHARP, W., J. Roma appeals from his judgment and sentence for committing a lewd or lascivious act on a child, in violation of section 800.04(1), Florida Statutes (1995)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1991 WL 103455
...the trial court may, in its discretion, impose a fine upon him and place him on probation or into community control as to imprisonment. [4] Appellant was convicted of lewd and lascivious act on a child under the age of sixteen years, in violation of Section
800.04(2), Florida Statutes (1987). Section
800.04 provides that such an offense is a felony in the second degree, punishable as provided in section
775.082, authorizing a maximum term of imprisonment of fifteen years, or as provided in section
775.083, authorizing a maximum fine of $1...
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1997 WL 364513
...If this limitation does not apply to split sentences exceeding the statutory maximum, the rule would not have referred to section 921.001(5). Ortiz' sentence for interfering in custody is concurrent with an identical sentence he received for lewd and lascivious behavior in violation of section 800.04, Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1469
...Public Defender, for appellant. Jim Smith, Atty. Gen., Henri C. Cawthon, Asst. Atty. Gen., for appellee. WILLIS, BEN C. (Ret.), Associate Judge. Crenshaw appeals from his conviction of lewd and lascivious assault on a child less than 14 years of age in contravention of Section 800.04, Florida Statutes (1983)....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1998 WL 396728
...We reverse defendant's sentences in case no. 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. Stat. (1993). [6] §
800.04(4), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2005 WL 155463
...The State appeals Robert Wheeler's downward departure sentence of forty-eight months' probation imposed after he pleaded no contest to a second-degree felony offense of committing a lewd and lascivious act upon a child under the age of sixteen years in violation of section 800.04(2), Florida Statutes (1997)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2008 WL 140963
...ot 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. He pled guilty in both cases, served a nine year prison sentence, and was released on fifteen years' probation. He was arrested in 2005 and charged in count one with violating section
800.04(4)(a), Florida Statutes (2004), by committing lewd or lascivious battery and in count two with violating section
800.04(6)(a), (b), Florida Statutes (2004), by committing lewd or lascivious conduct....
...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.
800.04(4) or (5); 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.
800.04(4) or (5); s....
...s at the same time he was found guilty on the current charges. There was clearly competent substantial evidence in the record to support his sentencing. 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. Stat. Section
800.04(6) is not included in this list. The state concedes that Abrams's conviction under section
800.04(6), Florida Statutes (2004), does not qualify him for sentencing pursuant to the dangerous sexual felony offender act....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2000 WL 201440
...Melear, Assistant Attorney General, West Palm Beach, for appellee. HAZOURI, J. After a jury trial, Jordache Holybrice (Holybrice) was convicted of two counts of lewd assault by committing a sexual battery upon a child under the age of 16 years under section 800.04(3), Florida Statutes (1997)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1991 WL 18242
...mand for a new trial. We find Lifka v. State,
530 So.2d 371 (Fla. 1st DCA 1988) as persuasive authority for reversing one of the two lewd act convictions. The First District, in Lifka, indicated in footnote one: One reason for charging assault under section
800.04(1) rather a lewd act under section
800.04(3) may be that a charge of lewd assault focuses on the person assaulted so that a separate charge would lie as to each victim on both occasions, supporting a total of four felony charges; whereas a charge of committing a lewd act in th...
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Munch, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Affirmed. GRIMES, A.C.J., and SCHEB and FRANK, JJ., concur. ON MOTION FOR REHEARING PER CURIAM. The effect of our December 23, 1986, per curiam decision was to uphold the constitutionality of section 800.04, Florida Statutes (1985), and affirm the appellant's adjudication of delinquency under that statute. In his motion for rehearing, appellant requests that we certify this issue to the Florida Supreme Court or, in the alternative, issue an opinion expressly ruling on the constitutionality of section 800.04....
...this section. Appellant, a child of fourteen, was adjudicated delinquent by committing a lewd and lascivious assault on a child under sixteen years of age. Appellant points out that the children involved are both members of the protected class under section 800.04....
...what is prohibited because of the difficulty of distinguishing between the victim and the perpetrator. Also, he argues that members of the protected class should be permitted to use the defenses of consent or lack of chastity. Thus, he contends that section 800.04 is unconstitutionally void for vagueness when applied to children under sixteen....
...1304,
1 L.Ed.2d 1498 (1957); State v. Hagan,
387 So.2d 943 (Fla. 1980). We find no merit to appellant's argument. Thus, we reaffirm the conclusion implicit in our per curiam decision rejecting the appellant's contention of unconstitutionality. The conduct proscribed under section
800.04 is clear....
...The fact the legislature did not make an exception for perpetrators under sixteen does not render the statute unconstitutional. It simply means that the legislature intended no such distinction. We decline appellant's request to certify this issue as one of great public importance. However, since we have expressly held section 800.04 constitutional, appellant may seek review in the Florida Supreme Court pursuant to Article V, Section 3(b)(3), of the Florida Constitution....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1996 WL 64775
...The state urges that Smith's criminal commission of sexual acts with an underage victim, in concert with two other individuals, should not be rewarded with a downward departure sentence in contravention of the legislature's stated public policies. The State principally urges that section 800.04, Florida Statutes (1993), the statute which Smith was convicted of violating, is designed to protect children from sexual acts performed on them by adults, regardless of their consent....
...If a child's consent to sex is a basis to depart in this case, it would be so in virtually any case. Indeed, this case presents exactly the sort of behavior by adults the statute is designed to prohibit. In Jones v. State,
640 So.2d 1084 (Fla. 1994), the supreme court recently answered a certified question deeming section
800.04, Florida Statutes to be constitutional....
...do not want the "protections" advanced by the State. However, neither *644 the level of intimacy nor the degree of harm are relevant when an adult and a child under the age of sixteen engage in sexual intercourse. The statutory protection offered by section 800.04 assures that, to the extent the law can prevent such activity, minors will not be sexually harmed....
...The law of sex, however, can operate as a value generating force when those who create or who are governed by it perceive in the law an underlying vision of appropriate sexual conduct. Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S.Cal.L.Rev. 777, 777 (1988). The legislature enacted section 800.04 based on a "morally neutral judgment" that sexual intercourse with a child under the age of sixteen, with or without consent, is potentially harmful to the child....
CopyCited 5 times | Published | Supreme Court of Florida | 2013 WL 535407
...The instructions as set forth in the appendix shall be effective when this opinion becomes final. It is so ordered. POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur. APPENDIX 11.10(c) LEWD OR LASCIVIOUS MOLESTATION § 800.04(5), Fla....
...The defendant’s ignorance of victim’s age, victim’s misrepresentation of [his][her] age, or the defendant’s bona fide belief of (victim’s) age is not a defense to the crime charged. Lesser Included Offenses _LEWD OR LASCIVIOUS MOLESTATION — 800.04(5)_ CATEGORY ONE CATEGORY TWO_FLA....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1989 WL 78350
...on. The legislature also specified that the vagina must be penetrated when the sexual battery involves "any other object" than a sexual organ of another. We note that the repeal of the crime of lewd, lascivious, indecent assault or act upon a child, section 800.04, Florida Statutes (1973), occurred at the same legislative session that enacted the sexual 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....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2006 WL 229919
...person less than sixteen years of age. Count I alleged in pertinent part that Method "did intentionally touch [K.R.], a person under 16 years of age, in a lewd or lascivious manner by rubbing said child's back underneath her clothing, contrary to F.S. 800.04(6)(a) and F.S. 800.04(6)(b)." (Emphasis added). Count II alleged in pertinent part that Method "did intentionally touch [A.H.], a person under 16 years of age, in a lewd or lascivious manner by touching said child's back and/or stomach and/or thigh underneath her clothing, contrary to F.S. 800.04(6)(a) and F.S. 800.04(6)(b)." (Emphasis added). Count III alleged in pertinent part that Method "did intentionally touch [C.L.], a person under 16 years of age, in a lewd or lascivious manner by hugging said child from behind and thereby placing his hands over her breast area, contrary to F.S. 800.04(6)(a) and F.S. 800.04(6)(b)." (Emphasis added)....
...us acts. The trial court denied the motion to dismiss, citing State v. Mitchell,
624 So.2d 859 (Fla. 5th DCA 1993). After denial of the motion, Method entered into a negotiated plea, reserving his right to appeal the ruling on the motion to dismiss. Section
800.04(6), Florida Statutes (2001), provides in pertinent part: (6) Lewd or lascivious conduct. (a) A person who: 1....
...eager for sexual indulgence." Id. In State v. Mitchell,
624 So.2d 859 (Fla. 5th DCA 1993), the fifth district provided guidance with respect to the proper treatment of a motion to dismiss an information alleging a violation of an earlier version of section
800.04, Florida Statutes....
...not fall within the category of conduct that is not lewd or lascivious as a matter of law. Similarly, *144 the allegation that the defendant touched the child's breast area in a lewd and lascivious manner states a prima facie case for a violation of section 800.04(6)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1987 WL 2629
...The information charging appellant alleged that on or about May 17 through May 19, 1985, appellant unlawfully handled, fondled or made an assault upon a 13 year old child, in a lewd and lascivious or indecent manner ... by touching the victim about the crotch, contrary to section 800.04, Florida Statutes....
...than appellant actually received. In Worling v. State,
484 So.2d 94 (Fla. 5th *331 DCA 1986), where Worling was charged in the information with lewd and lascivious assault worded identically to the charge against appellant here, the court found that section
800.04 Florida Statutes is worded in the disjunctive such that it can encompass acts involving victim contact and those without victim contact....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1999 WL 1116951
...Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee. DELL, J. We affirm appellant's conviction for committing a lewd, lascivious, or indecent act upon a child under the age of sixteen in violation of section 800.04, Florida Statutes (1997)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 114
...The state argues strenuously that this court should apply the rationale of Moore v. State,
469 So.2d 947 (Fla. 5th DCA 1985), to this case. In Moore, appellant was convicted for the offense of "lewd, lascivious or indecent assault or act upon or in the presence of a child." The court observed that the "applicable statute [section
800.04] is written in the disjunctive so that physical contact may constitute an element."
469 So.2d at 949....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2008 WL 5070459
...an offender over eighteen years of age. See §
794.011(2)(a), Fla. Stat. (2000). He also pleaded guilty to the first-degree felony of lewd and lascivious molestation of a child under twelve years of age by an offender over eighteen years of age. See §
800.04(5)(b), Fla....
...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. See §
777.04(4)(b), Fla. Stat. (2000). The lewd and lascivious molestation conviction under section
800.04(5)(b) was also a first-degree felony....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2006 WL 3750446
...oof he committed the charged offense. McLean,
934 So.2d at 1255. To minimize that risk, the state may not make the collateral crimes a feature of the trial. Ashley,
265 So.2d at 693. REVERSED and REMANDED. THOMPSON and LAWSON, JJ., concur. NOTES [1] §
800.04(5)(c)(2), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1991 WL 268560
...Butterworth, Atty. Gen., Tallahassee, and Robin Compton Jones, Asst. Atty. Gen., Daytona Beach, for appellee. PER CURIAM. This is another sentencing guidelines scoresheet case. The defendant was convicted of lewd and lascivious assault upon a child (§ 800.04(1), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...forth in rules 3.701 and 3.988, Florida Rules of Criminal Procedure. We affirm. Dorman was originally charged by information with two counts of lewd, lascivious and indecent assault upon two female children under the age of fourteen, in violation of section 800.04, Florida Statutes....
...1st DCA 1984); Carter v. State,
452 So.2d 953 (Fla. 5th DCA 1984). Accordingly, the trial court properly complied with the guidelines. [3] Moreover, we do not consider the seven-year sentence to be clearly excessive. Dorman was convicted of a violation of section
800.04, which carries with it a maximum penalty of fifteen years incarceration under section
775.082(3)(c), Florida Statutes....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1905755
...ther crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. §
90.404(2)(b)(1), Fla. Stat. (2001). Child molestation is defined as "conduct proscribed by s.
794.011 or s.
800.04 when committed against a person 16 years of age or younger." §
90.404(2)(b)(2). In this case Insko was charged under section
800.04(6)(a)(2) and (b) and the victim was thirteen at the time of the incident; thus section
90.404(2)(b) applies....
...The Williams rule evidence concerning Insko's solicitation of Lewis may be admitted at the trial, but any evidence concerning Insko's masturbation during that incident must be excluded. STRINGER and COVINGTON, JJ., concur. NOTES [1] The State charged Insko with a second-degree felony under section 800.04(6)(a)(2) and (b), Florida Statutes (2001), lewd and lascivious conduct by a defendant aged eighteen or above. The jurors found him guilty of the lesser-included third-degree felony of lewd and lascivious conduct by a defendant under the age of eighteen. § 800.04(6)(c)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1992 WL 206418
...Appellee was charged by amended information with three counts of sexual activity by a person in familial or custodial authority in violation of section 794.041, Florida *557 Statutes (1989), and one count of lewd, lascivious or indecent assault or act upon a child in violation of section 800.04, Florida Statutes (1989)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...On 22 August 1983, Sweat was charged with sexual battery of a four-year-old mongoloid child contrary to Section
794.011, Florida Statutes. Subsequently, he pled guilty to the lesser included offense of lewd and lascivious or indecent assault or act upon or in the presence of a child contrary to Section
800.04, Florida Statutes....
...for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions of this act." (e.s.) Manifestly, the guidelines should be applied to the offense pleaded to by Sweat, since violation of section 800.04, Florida Statutes, results in the offender being guilty of a felony of the second degree....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 29 Fla. L. Weekly Fed. D 1912
...Germanowicz, Assistant Attorney General, West Palm Beach, for appellee. BERNSTEIN, SCOTT M., Associate Judge. The State charged twenty-year-old Mijarez with one count of lewd and lascivious battery of a fourteen-year-old girl, and two separate counts of lewd and lascivious molestation, all in violation of section 800.04 of the Florida Statutes....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2000 WL 1152501
...State,
578 So.2d 371 (Fla. 1st DCA 1991); Burgess v. State,
644 So.2d 589 (Fla. 4th DCA 1994); Preston v. State,
470 So.2d 836 (Fla. 2d DCA 1985); Monarca v. State,
412 So.2d 443 (Fla. 5th DCA 1982) Consent is a statutorily precluded defense under section
800.04, Florida Statutes (1997), in cases of lewd and lascivious assault of a child; consequently, we question application of the exception in such cases....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2001 WL 864260
...Instead, these sentencing factors may be determined by the judge by a preponderance of the evidence. See Apprendi,
530 U.S. at 490,
120 S.Ct. 2348. III Having concluded this analysis, we can now turn to the case at bar and apply the facts to the rule of Apprendi. The statute with which Gilson was charged was section
800.04(4). Section
800.04(4) reads: LEWD OR LASCIVIOUS BATERY....
...f age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity commits lewd or lascivious battery, a felony of the second degree, punishable as provided in s.
775.082, s. 775,083, or s.
775.084. §
800.04(4), Fla....
...Further, sexual activity is defined as: the oral, anal, or vaginal penetration by, or union with, the sexual organs of another or the anal or vaginal penetration *111 of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. § 800.04(1)(a), Fla....
...ged in either (1) oral, anal or vaginal penetration of the victim, (2) union with the victim's sexual organ, or (3) anal or vaginal penetration of the victim with any other object; and, that the victim was between the ages of twelve and sixteen. See § 800.04(1)(a), (4), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 975
...Hightower, was indicted for sexual battery of a child of six pursuant to section
794.011(2), Florida Statutes (1983). [1] At trial the defendant specifically objected to an instruction and verdict form on lewd and lascivious conduct *107 pursuant to section
800.04, Florida Statutes (1983), [2] as a lesser included offense....
...da 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). Case law is abundantly clear that lewd and lascivious conduct in section
800.04, as the statute read prior to its amendment in 1984, [3] was not a necessarily lesser included offense of sexual battery (formerly rape) committed against a child of eleven or younger....
...See Ray v. State,
403 So.2d 956 (Fla. 1981); State v. Sumner,
157 Fla. 371,
26 So.2d 336 (1946); Walker v. State,
464 So.2d 1325 (Fla. 5th DCA 1985); Harrielson v. State,
441 So.2d 691 (Fla. 5th DCA 1983). Nevertheless, the trial court instructed on section
800.04 and, as fate would have it, the jury convicted of that offense....
...On appeal, Hightower contends he cannot be convicted of an offense with which he was not charged. The state argues that the legislature intended lewd and lascivious conduct to be a necessarily lesser included offense of sexual battery, as shown by the amendment to section 800.04 in 1984, which was prompted by the opinion of the Third District Court of Appeal in Lanier v....
...State v. Lanier,
464 So.2d 1192 (Fla. 1985). Therein, the Florida Supreme Court held that a defendant charged with unlawfully handling, fondling or assaulting a twelve-year-old girl by "engaging in sexual intercourse" could be convicted of violating section
800.04, Florida Statutes (1981), even where the facts reveal lack of chastity and consent. The 1981 statute and the 1983 statute are the same. The court said: We must apply section
800.04 as it existed at the time the allegedly lewd and lascivious acts occurred, prior to the enactment of the amendment....
...(An amendment to a statute clarifying the scope of underinsured motorist insurance coverage did not alter the scope of such coverage as it existed prior to the enactment of the amendment because the amendment merely served to clarify the extent of coverage as it previously existed.) Therefore, we hold that section 800.04 both prior to and subsequent to the 1984 amendment is violated when a male engages in sexual intercourse with a twelve-year-old girl despite the fact that the victim was previously unchaste and the sexual intercourse was consensual. Id. at 1193. The Lanier opinion deals with consensual intercourse with an unchaste twelve-year-old, and holds that such intercourse which was not a sexual battery under extant statutes could constitute lewd handling or fondling under section 800.04, even before the 1984 amendment. But the fallacy of the state's argument in the instant case is that such intercourse with a child under twelve would constitute sexual battery and, therefore, by definition, could not be lewd and lascivious conduct under section 800.04....
...[victim] or by injuring the sexual organ of [victim] with his sexual organ, in an attempt to penetrate or have union with the vagina of [victim]." Pursuant to Ray and Sumner, that language does not include the statutory elements of an offense under section 800.04....
...COWART, Judge, concurring specially: The defendant in this case was charged with sexual battery (§
794.011(2), Fla. Stat.) and convicted of handling, fondling, or assaulting a child in a lewd, lascivious, or indecent manner or of committing a lewd act in the presence of a child (§
800.04, Fla. Stat. (1983)). Not only does section
800.04, Florida Statutes (1983), contain an express negative element eliminating the described acts when done with the intent to commit sexual battery, but, as the terms of *110 these statutes are statutorily defined, one can commit a sexual battery without violating section
800.04, Florida Statutes (1983)....
...ida Supreme Court has receded from that holding in its more recent decision in State v. Lanier,
464 So.2d 1192 (Fla. 1985). In Lanier, the court held that proof of sexual intercourse with a consenting twelve-year-old would justify a conviction under section
800.04, Florida Statutes (1983)....
...In this case there was no issue about consent or lack of chastity, as the victim was only six years old. Proof of at least sexual battery, if not rape, [3] was clear and found by the jury. I can see nothing that materially distinguishes Lanier from this case. If a charge of violating section
800.04 (lewd and lascivious behavior) can be proved by the act of committing sexual intercourse with a child, even though 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....
...ild, since rape or sexual battery is not only done in the child's presence, but to its person. These are very fine distinctions, the kind which give courts the reputation for being more caught up in legal abstraction than the plain meaning of words. 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....
...[4] The preamble to the revised statute was quoted in Lanier, as the basis for its holding. It states: Whereas, the intent of the Legislature was and remains to prohibit lewd and lascivious acts upon children, including sexual intercourse and other acts defined as sexual battery... . Lanier held that section
800.04 "both prior to and subsequent to the 1984 Amendment is violated when a male engages in sexual intercourse with a twelve-year-old girl... ." Id. at 1193. Based on Lanier, I conclude that a violation of section
800.04 may be proved by establishing the sexual battery or rape of a child, 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)....
...y 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 s.
775.082, s.
775.083, or s.
775.084. [2] Section
800.04, Florida Statutes (1983), reads as follows: Lewd, lascivious or indecent assault or act upon or in presence of child....
...e intent to commit sexual battery shall be guilty of a felony of the second degree, punishable as provided in s.
775.082, s.
775.083 or s.
775.084. [3] The instant offense occurred in December of 1983, prior to the effective date of the amendment to section
800.04 in 1984....
...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. Stat. (1983). [3] The testimony at trial did not clearly establish that penetration of the child had occurred. [4] §
800.04(2), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1990 WL 48648
...." 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)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1994 WL 484613
...dismissed,
618 So.2d 208 (Fla. 1993). Because now the supreme court has affirmed the ruling of this court all courts must abide by the decision. The order is quashed and this cause remanded for trial. HARRIS, C.J., and THOMPSON, J., concur. NOTES [1] §
800.04(3), Fla....
CopyCited 4 times | Published | District Court, S.D. Florida
...New Orleans Book Mart, Inc.,
490 F.2d 73 (5th Cir. 1974) (statute prohibiting "obscene, lewd, lascivious or filthy" publications not vague); Bell v. State,
289 So.2d 388 (Fla.1973) (Fla.Stat.
796.07, "lewdness" not vague); Chesebrough v. State,
255 So.2d 675 (Fla.1971) (Fla.Stat.
800.04, "lewd" and "lascivious" not vague)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2008 WL 4377316
...e 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)....
...tains 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 molestation as "intentionally touch[ing] in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age...." [3] Se...
...However, the converse does not hold true. Rather, the elements of lewd or lascivious molestation are subsumed by the elements of the more serious crime of sexual battery. In other words, sexual battery cannot occur without a touching of one of the body parts listed in section 800.04(5). Because sexual battery requires such touching, one cannot commit sexual battery without simultaneously committing the crime described in section 800.04(5)....
...4th DCA 1998) (holding that when multiple convictions violate the double jeopardy prohibition, "[t]he proper remedy is to vacate the conviction for the lesser offense while affirming the conviction for the greater one"). [2] Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). [3] Section
800.04(5)(a) defines specific alternative conduct as lewd or lascivious molestation....
...ner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under the 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation." § 800.04(5)(a)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1995 WL 570435
...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). [2] §
800.04, Florida Statutes (1983).
CopyCited 4 times | Published | Florida 5th District Court of Appeal
...The State appeals an order dismissing the delinquency petition charging D.A. with lewd and lascivious molestation. The trial judge dismissed the petition pursuant to the juvenile speedy trial rule, [1] because the State amended the petition during the recapture period to correct an erroneous citation to section 800.04(5)(c)(2), Florida Statutes (which applies to a defendant 18 years of age or older). The amended petition correctly charged D.A. under section 800.04(5)(d), which applies to a defendant under the age of 18....
...State,
846 So. 2d 565 (Fla. 4th DCA 2003). The Fourth District held that the age of the defendant was not an element of the crime. In so holding, the Court reasoned that because "the structure and language of the statute in Jesus is compellingly analogous to section
800.04(5) governing lewd or lascivious molestation," the reasoning and holding of Jesus should be applied....
...Again, we would welcome a reversal. Consequently, we certify the following as questions of great public importance: 1. IN LIGHT OF THE RULING IN GLOVER v. STATE,
863 So. 2d 236 (Fla. 2003), IS THE AGE OF THE OFFENDER AN ELEMENT OF THE OFFENSE OF LEWD OR LASCIVIOUS OFFENSES UNDER SECTION
800.04, FLORIDA STATUTES? 2....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2004 WL 2071196
...Because we conclude that the psychotherapist-patient privilege applies to some of the mental health records requested, we grant certiorari and quash the discovery order. Mr. Roberson is charged with one count of lewd or lascivious battery with a person 12 years of age or older but less than 16 years of age in violation of section 800.04(4)(a), Florida Statutes (2003), and two counts of lewd or lascivious molestation in violation of section 800.04(5), Florida Statutes (2003)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1998 WL 698178
...Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee. PETERSON, Judge. The appellant was found guilty of committing a lewd or lascivious act on a child under sixteen. § 800.04, Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1999 WL 890487
...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....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2012 WL 4512774, 2012 Fla. App. LEXIS 16705
...k between the two acts. But, as discussed below, the offenses are based on separate and distinct acts proscribed by the lewd or lascivious molestation statute. Accordingly, double jeopardy does not bar Sanders’ dual convictions for these offenses. Section 800.04(5)(a), Florida Statutes (2009), defines the crime of lewd or lascivious molestation as “intentionally touching] in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a pers...
...cided warrant multiple punishments.” Id. (quoting Meshell,
2 So.3d at 135 ). We recognize that the Second District stated in Brown v. State,
25 So.3d 78, 80 (Fla. 2d DCA 2009), that “[t]he reasoning of Meshell does not apply to convictions under section
800.04(5)(a) because that section prohibits lewd or lascivious touching and proscribes sexual acts that are different from the acts that are proscribed in the sexual battery statute.” The court made this statement in the context of a petition alleging ineffective assistance of appellate counsel, not a direct appeal....
...Drawdy v. State,
98 So.3d 165, 171, n. 5 (Fla. 2d DCA 2012) (certifying conflict with Roberts and citing Brown for the proposition that “[t]he apparent trend [in the post -Meshell case law] has not reached far enough to deem different variations of section
800.04(5) lewd or lascivious molestation to be separate offenses for double jeopardy purposes”)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1997 WL 662386
...the specified age. Sorakrai (neither ignorance, misrepresentation, nor belief that victim was 16 years or older is available as a defense to defendant charged with committing a lewd and lascivious act upon child under age of 16 years in violation of § 800.04, Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1998 WL 712464
...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. Stat.(1995). [2] See §
800.04(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1995 WL 642257
...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....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2003 WL 22768356
...son 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)....
...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....
...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 previous conviction and the alleged felonies were not capital, life or first-degree....
...(c) For a current offense committed on or after October 1, 1996, upon conviction, an offender shall be designated as a "sexual predator" ... if: 1 .... the felony is: a. A capital, life, or first degree felony violation of chapter 794 ... 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) ... [or] s.
800.04.......
...ed as a "sexual predator" ... if: 1. The felony is: a. A capital, life, or first-degree felony violation, or any attempt thereof, of s.
787.01 or s.
787.02, where the victim is a minor and the defendant is not the victim's parent, or of chapter 794, s.
800.04, or s.
847.0145, or a violation of a similar law of another jurisdiction; or b. Any felony violation, or any attempt thereof, of ... s.
800.04....
...ation 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.
794.023, s.
800.04, s....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...In fact, she charged money for her participation. The trial court granted a Judgment of acquittal as to the crime charged but permitted, over objection, the trial to continue for the jury to determine whether the Defendant committed an attempted lewd assault as proscribed in Section 800.04, Florida Statutes (1975)....
...pon a person under eleven, and the jury was given the case as a case of lewd assault. The Defendant was convicted of "handling & fondling a child under the age of 14 years in a lewd, lascivious or indecent manner." This is essentially the wording of Section 800.04, Florida Statutes (1975)....
...State,
206 So.2d 377 (Fla. 1968). The accusatory pleading in the case at bar charges the Appellant "... did attempt to commit a Sexual Battery upon a person eleven (11) years of age or younger, ..." The requisite allegations under the Lewd Assault Statute, Section
800.04, Florida Statutes (1975), are not there....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 5444, 34 Fla. L. Weekly Fed. D 1010
...lve in violation of section
787.025, Florida Statutes (2006); (2) child abuse in violation of section
827.03(1)(b), Florida Statutes (2006); and (3) lewd or lascivious molestationoffender eighteen or older, victim twelve or younger in violation of section
800.04(5)(b), Florida Statutes (2006)....
CopyCited 4 times | Published | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 3465, 1990 WL 64116
DAUKSCH, Judge. This is an appeal from a guidelines departure sentence. On January 27, 1989, appellant pled nolo contendere to a charge of lewd or lascivious assault upon a child in violation of section 800.04(1), Florida Statutes (1987)....
...Everyone who breaks a criminal law violates this trust. Being naturally innocent in sexual matters, all children are especially vulnerable to the physical, mental and emotional harm that can result from exposure to gross adult lewd acts. To protect children from that harm is the very purpose of section 800.04, Florida Statutes which prohibits lewd acts on, or in the presence of children....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 4191, 2010 WL 1222737
...been released (rather than when "before the court for sentencing" [1] ). Cuevas entered a plea of guilty to charges of lewd and lascivious molestation on a child under 12 and lewd and lascivious conduct on a child under 16, in violation of sections 800.04(5)(b) and 800.04(6)(b), Florida Statutes (2000)....
...I find it cannot and would reverse the order on appeal. On January 22, 2002, Desiderio Cuevas was sentenced to fifty-six months of incarceration pursuant to a guilty plea on the counts of lewd and lascivious molestation of a child under twelve years of age, *293 § 800.04(5), Fla. Stat. (2000), and lewd and lascivious conduct on a child under sixteen years of age, § 800.04(6), Fla....
CopyCited 4 times | Published | Supreme Court of Florida
....02, Florida Statutes, (proscribing "open and gross lewdness and lascivious behavior"), which provides the basis for the charges against this appellant. In Coile v. State,
212 So.2d 94 (Fla.App. 3rd 1968), defendant was charged with the violation of Section
800.04, Florida Statutes, (lewd, lascivious, or indecent assault or act upon or in the presence of a child), and the trial court reduced the charge to a violation of the second clause of Section
798.02, supra....
...ied or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in §
775.082 or §
775.083." [1] Chesebrough v. State,
255 So.2d 675 (Fla. 1971) (as to Section
800.04, Fla....
...City of Miami Beach,
491 F.2d 98 (5th Cir.1974); Section
800.02, Florida Statutes: Murray v. State of Florida,
384 F. Supp. 574 (S.D.Fla. 1974); Bell v. State, supra, at 390; State v. Fasano,
284 So.2d 683 (Fla. 1973); Witherspoon v. State,
278 So.2d 611, 612 (Fla. 1973); Franklin v. State,
257 So.2d 21, 24 (Fla. 1971); Section
800.04, Florida Statutes: Chesebrough v....
CopyCited 4 times | Published | District Court of Appeal of Florida | 1959 Fla. App. LEXIS 2837
PER CURIAM. From a judgment of conviction for the offense prohibited by section 800.04, Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2008 WL 724031
...Following the return of a guilty verdict by a jury, Garcia was convicted of this capital felony and sentenced to life in prison. On appeal, Garcia argues that the trial court erred in denying his request to instruct the jury on lewd or lascivious molestation under section 800.04(5)(a), Florida Statutes (2004), as a permissive lesser included offense....
...Because the statutory elements of lewd or lascivious molestation were not alleged in the information charging Garcia with capital sexual battery, the trial court did not err in denying Garcia's request. 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. See Williams v. State,
957 So.2d 595, 597-98 (Fla.2007). 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....
...vision, 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....
...The information alleged that Garcia's "mouth and/or tongue" had union with the child's vagina and that Garcia was at least eighteen and the child was under twelve at the time of the offense. Garcia requested an instruction on the offense of lewd or lascivious molestation under section 800.04(5)(a), which proscribes certain intentional touching "in a lewd or lascivious manner." Specifically, section 800.04(5)(a) states that [a] person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation. § 800.04(5)(a), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1994 WL 84133
...We find no merit in any of the other issues raised by appellant. Therefore, since the record indicates that there was sufficient evidence to support a conviction for the lesser included offense of handling and fondling a child under sixteen years of age contrary to section 800.04, Florida Statutes (1987), the trial court upon remand should enter a judgment against the appellant for that lesser included offense and sentence him accordingly....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1993 WL 242712
...han that committed by Mr. Campbell. Id. In so doing, the court considered the time, place, and circumstances of the relevant act. Id. In Chesebrough and Egal, each defendant was convicted of a lewd and lascivious act in the presence of a child under section 800.04, Florida Statutes....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1996 WL 354601
...PETERSON, Chief Judge. The State of Florida appeals a downward departure sentence imposed upon Antoine Scaife, a 21 year old who entered a plea of nolo contendere to the charge of committing a lewd act upon a child under the age of 16 in *1036 violation of section 800.04(3), Florida Statutes (1993)....
...State,
510 So.2d 296, 297 (Fla. 1987). Second, the fact that the defendant and the victim were involved in a "dating situation" and by inference were engaged in a consensual sexual relationship is of no consequence because of the language contained in section
800.04(4), Florida Statutes (1993): "Neither the victim's lack of chastity nor the victim's consent is a defense...." State v. Smith,
668 So.2d 639 (Fla. 5th DCA 1996) (key feature of section
800.04 is the irrelevancy of a child's consent to sex, and thus, it is inconceivable that a child's consent could be a basis for downward departure)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1998 WL 336329
...minors from consensual sexual activity with adults twenty-four or older. Additionally, any such adult violating this statute is subject to the same punishment as any person engaging in sexual activity with a minor less than sixteen, in violation of section 800.04, Florida Statutes (1991)....
...they do not want the "protections" advanced by the State. However, neither the level of intimacy nor the degree of harm are relevant when an adult and a child under the age of sixteen engage in sexual intercourse. The statutory protection offered by section 800.04 assures that, to the extent the law can prevent such activity, minors will not be sexually harmed....
...State,
640 So.2d 1084, 1087 (Fla. 1994).... . . . . The State contends that the compelling state interest furthered by this statute is the same as the state interest which we found to be compelling in Jones. However, in Jones we were dealing with a situation where section
800.04 was applied to charge an adult engaged in sexual activity with a minor under the age of sixteen years....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1572
...tencing guidelines recommended sentence without a statement of clear and convincing reasons. We reverse and remand for resentencing. Appellant pled nolo contendere and was adjudicated guilty of sexual battery, a second degree felony, in violation of section
800.04, Florida Statutes (1985), and child abuse, a first degree misdemeanor, in violation of section
827.04(2), Florida Statutes (1985)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 8793, 2009 WL 1675724
...himself. The defendant chose not to testify. We hold that the trial court improperly forced a choice between two constitutional rights, and reverse. Appellant Willie Wilson was charged with two counts of lewd or lascivious exhibition in violation of section 800.04, Florida Statutes (2006)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 9748, 2010 WL 2628658
...stioned her mother and grandmother about Lowe's actions. The mother called the police, who stopped Lowe as he was leaving the parking lot. The dildo was found in Lowe's truck. The State charged Lowe with lewd or lascivious exhibition in violation of section 800.04(7)(a), Florida Statutes (2009). Lowe moved to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190, claiming that his acts did not violate the statute. The State, while *791 agreeing that the material facts were not in dispute, argued that Lowe violated section 800.04(7)(a)3....
...State v. Santiago,
938 So.2d 603, 605 (Fla. 4th DCA 2006). The court decides the motion solely based on the undisputed facts, and in considering the evidence, the court must draw all inferences in favor of the State and against the defendant. Id. [2] Section
800.04, Florida Statutes (2009), proscribes lewd or lascivious offenses committed on or in the presence of persons less than sixteen years of age. Lowe was charged under section
800.04(7)(a)3., which prohibits lewd or lascivious exhibition, and provides, in pertinent part, that: (a) a person who: ....
...m, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition. (Emphasis added). Section 800.04(1)(a) defines the term "sexual activity" 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 other object." "[I]t is the Court's purpose to effectuate legislative intent" when interpreting a statute....
...when the language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused. §
775.021, Fla. Stat. (2009). Lowe contends that his conduct, while offensive, does not violate the clear language *792 of section
800.04(7)(a)....
...Lowe was charged specifically with simulating an act involving sexual activity, and contends that the definition of sexual activity contained in the statute does not prohibit his conduct. The Legislature defined "sexual activity" within the statute in section 800.04(1)(a), and Lowe highlights that only "the anal or vaginal penetration of another by an object" constitutes sexual activity....
...As Lowe points out, the definition of sexual activity does not include oral penetration with an object. Because a dildo is an object, whether or not it resembles a sexual organ, Lowe argues that the penetration of one's mouth with an object does not violate the statute. Section 800.04(7)(a)3....
...genitalia. Lowe's actions did not infer that he was simulating oral sex with another person; it was apparent he was simulating oral sex with an object. His actions, though clearly rude and offensive, do not violate the express terms of the statute. Section 800.04(1)(a) further defines sexual activity with an object as "the anal or vaginal penetration of another by any other object....
...No anal nor vaginal penetration of another with an object occurred. Nor did a simulation of anal or vaginal penetration with an object occur. A plain reading of the statute reveals that oral penetration of one's own mouth with an object does not constitute an act of sexual activity. Because section 800.04(7)(a)3....
...prohibits only the simulation of any act involving sexual activity, and the statute's definition of sexual activity does not include the simulation of oral sex with an object, Lowe's action did not constitute lewd or lascivious exhibition as defined under section 800.04(7)(a)3....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 214
...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....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2002 WL 80954
...e took pictures of the sexual acts. The State alleges that both Respondent Snyder and Respondent Grau were involved with the sex party. Respondent Snyder is charged with three counts of lewd and lascivious assault of a child in violation of Sections
800.04 and
777.04(2), Florida Statutes (2001) and three counts of sexual performance or use of a child in violation of Section
827.071(2), Florida Statutes (2001). Respondent Grau is charged with two counts of lewd and lascivious battery on a child 12-16 years old in violation of Section
800.04(4), Florida Statutes (2001)....
...a sexual performance. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. While courts have previously held that "lewd and lascivious" conduct in violation of Section
800.04 carries with it the same concept of "strict liability" that has traditionally characterized "statutory rape," it has not previously been made clear as to whether conduct in violation of Section
827.071(2) also carries the concept of "strict liability." See Hicks v....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1998 WL 2511
...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). [2] §
800.04, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2002 WL 63354
...Robert A. Butterworth, Attorney General and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee. VAN NORTWICK, J. Willie J. Baker appeals his conviction for committing a sexual act with a child under the age of 16 in violation of section 800.04(3), Florida Statutes (1997)....
...nd if you find that the victim is unreliable in that respect, then your verdict should be not guilty." The jury returned 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....
...69 (1898). Further, the crimes of sexual battery and lewd and lascivious conduct are mutually exclusive. Hausen v. State,
730 So.2d 327, 328 (Fla. 5th DCA 1999). As the supreme court pointed out in State v. Hightower,
509 So.2d 1078, 1079 (Fla. 1987), "section
800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious." Consensual intercourse with an unchaste fifteen year old constitutes the crime of lewd and lascivious conduct....
...dence. Thus, this is not a case, as the majority concludes, in which appellant conclusively admitted having sex with the victim. Appellant was, in fact, charged with a sexual act on a child under the age of 16, a second-degree felony in violation of section 800.04(3), Florida Statutes (1997)....
CopyCited 4 times | Published | Court of Appeals for the Eleventh Circuit | 2016 U.S. App. LEXIS 1783, 2016 WL 403183
...n for a writ of habeas corpus as
untimely.
I. BACKGROUND
On September 9, 2010, Danny pleaded guilty to the crime of lewd or
lascivious molestation of a victim who was less than 12 years old. See Fla. Stat.
§ 800.04(5)(b)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1992 WL 35366
...The offenses which formed the basis for appellant's convictions occurred in September of 1990. Therefore, we cannot apply the 1991 revision to rule 3.701. Judgments AFFIRMED; sentence VACATED; cause REMANDED. DAUKSCH and W. SHARP, JJ., concur. NOTES [1] § 800.04(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2002 WL 125678
...d not have been given any weight by the jury. AFFIRMED. THOMPSON, C.J., and GRIFFIN, J., concur. NOTES [1] See Amendment to Florida Rules of Criminal Procedure Creating Rule 3.853,
807 So.2d 633 (Fla.2001). See also Ch. 01-97, Laws of Florida. [2] §§
800.04(3) and
794.023, Fla. Stat. (1995). [3] §
800.04(1), Fla. Stat. (1995). [4] §
800.04(3), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2002 WL 31729016
...nt met PRR qualifications, the trial court erred in refusing to sentence him as a PRR. Accordingly, Smith's sentence is reversed and the cause remanded for resentencing under the PRR act. REVERSE AND REMAND. COBB and PETERSON, JJ., concur. NOTES [1] § 800.04(4)(a), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal
...State,
448 So.2d 524 (Fla. 5th DCA 1984), rev. granted, No. 65,116 ( State v. O'Hara ). [4] See State v. Baker,
456 So.2d 419 (Fla. 1984). [5] Similarly the absence of an intent to commit a sexual battery is not a negative "element" of a lewd assault on a child (§
800.04, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1996 WL 728695
...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)....
CopyCited 4 times | Published | District Court, S.D. Florida | 2003 U.S. Dist. LEXIS 24093, 2003 WL 23191034
...§ 2422(b) as a crime of violence, as well as the general notion that sexual offenses against minors inherently pose the risk of physical injury to victims, as explained by the Sixth Circuit.
175 F.3d at 905 (holding that conviction under Fla. Stat. §
800.04 [6] *1290 qualified as a crime of violence under USSG § 4B1.1)....
...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. A mother's breast feeding of her baby does not under any circumstance violate this section. Fla. Stat. §
800.04 (1993). Since one of Searcy's Florida convictions resulted from a violation of Fla. Stat. §
800.04(1), the same statute at issue in Rutherford and deemed a crime of violence by that court, the Florida conviction constitutes a crime of violence....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1992 WL 185791
...nce on remand. State v. Betancourt,
552 So.2d 1107, 1108 (Fla. 1989); Wood v. State,
593 So.2d 557, 557-58 (Fla. 5th DCA 1992). Convictions AFFIRMED; Sentences REVERSED in part; REMANDED. GOSHORN, C.J., and COBB and DIAMANTIS, JJ., concur. NOTES [1] §
800.04(1), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...Proof of specific intent is not generally an element of an offense unless specifically required by statutory language. E.g., Russell v. State,
373 So.2d 97 (Fla. 2d DCA 1979); State v. Shorette,
404 So.2d 816 (Fla. 2d DCA 1981). *417 The applicable language in Section
800.04, Florida Statutes, defining lewd assault, [1] does not include the word "intentionally" or any other specific reference to the perpetrator's intent....
...hat he was convicted of attempted lewd assault rather than lewd assault as charged. Accordingly, we remand for correction of the judgment form to reflect a conviction for attempted lewd assault. BOOTH, WENTWORTH and WIGGINTON, JJ., concur. NOTES [1] Section 800.04, Florida Statutes, provides as follows: Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act...
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2007 WL 2317302
...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....
...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....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 12073, 2016 WL 4205336
...The information further alleged that Lesovsky, “being eighteen (18) years of age or older, did intentionally touch [the victim], a person under sixteen (16) years of age, in a lewd or lascivious manner by placing her tongue in the mouth of [the victim], contrary to F.S. 800.04(6)(a) and F.S. 800.04(6)(b)” (“Count IV”)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2003 WL 1720169
...ommit any illegal act described in ... chapter 800, relating to lewdness and indecent exposure ... commits a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. §
847.0135, Fla. Stat. (2000)(emphasis added). Section
800.04(1)(a), Florida Statutes, prohibits oral, anal, or vaginal sexual activity with a person under the age of sixteen. The statute further prohibits the touching of a child in a lewd or lascivious manner or having the child touch the perpetrator in this way. See §
800.04(5)(a), (6)(a)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1990 WL 45275
...ce no further punishment can be imposed. Appellant also contends that the special condition of probation was an abuse of discretion. Lewd and lascivious assault is a second degree felony punishable "by a term of imprisonment not exceeding 15 years." §
800.04 and
775.082, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2008 WL 977193
...*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 ....
...Therefore, notwithstanding the short interval of time involved here, we believe each act is a separate criminal offense." Id. This analysis appears to be consistent with the supreme court's discussion of double jeopardy problems involving convictions under different subsections of
800.04 for "specific alternative conduct." See Paul,
934 So.2d at 1174 n. 4. There, the court indicated that separate convictions *1173 under different subsections of section
800.04, for acts undertaken during a single criminal episode, would only violate double jeopardy if the defendant was being prosecuted "for the same conduct" under both subsections of the statute. Id. If this is the appropriate double jeopardy analysis for prosecution under different subsections of the statute, it would arguably be the appropriate approach for prosecutions involving the distinctly different acts proscribed under section
800.04(4) as lewd and lascivious battery....
...nd 3 relate to different enumerated sex acts. Inexplicably, even the other district courts in Florida do not appear to have applied their Duke double jeopardy analysis of the sexual battery statute to the same list of distinct sex acts proscribed in section 800.04(4), Florida Statutes....
...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....
...ltiple victims; and (2) whether the offenses occurred in multiple locations. See Paul,
934 So.2d at 1173-74. In our case, however, involving one victim in a single location, the only relevant factor is the "temporal break." [4] As noted in Cabanela, section
800.04, Florida Statutes, was substantially rewritten as of October 1, 1999....
...The panel in Cabanela grounded its double jeopardy analysis on its conclusion that "the [new] statute's focus [is] on conduct involving sexual activity and not upon the individual acts that comprise lewd and lascivious activity." Although this observation may be correct with respect to other subsections in section 800.04, it does not appear to be an accurate description of section 800.04(4), proscribing lewd and lascivious battery....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2006 WL 2570585
...He reserved the right to appeal the court's denial of his motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We affirm. In 1998, appellant was adjudicated guilty in Minnesota of an offense he admits was comparable to that defined in section 800.04(4)(a), Florida Statutes (2004)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1989 WL 102511
...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 ......
...He argues that his lewd and lascivious convictions cannot stand because the sexual battery and lewd and lascivious counts were predicated on indistinguishable acts against the same victim. He cites State v. Hightower,
509 So.2d 1078, 1079 (Fla. 1987), in which the supreme court interpreted the statute: As now worded, section
800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section
800.04 makes it clear these particular crimes are mutually exclusive....
...ctims and one observes the sexual battery of the other. We think it integral to the proper application of Hightower to recognize that it did not contemplate the situation where one sexual battery victim watches the sexual battery of another. Indeed, section 800.04(3) itself provides that a person who "[k]nowingly 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 ......
...Although we agree with the state that proof exists that the 14-year-old saw the defendant commit three sexual offenses against the other girl, the existence of such evidence does not correct the state's failure to allege in the information the offense described in section 800.04(3)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2003 WL 22056036
...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. Stat. (2001). [2] Section
800.04(5), Fla. Stat. (2001). [3] Section
800.04(6), Fla. Stat. (2001). [4] Section
800.04(7), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 WL 3783340
...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)....
...ny 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. where the court finds molestation involving unclothed genitals; or (IV) Section
800.04(5)(d) where the court finds the use of force or coercion and unclothed genitals....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2008 Fla. App. LEXIS 16428, 2008 WL 4643849
...State,
647 So.2d 295 (Fla. 3d DCA 1994). According to the state, these authorities dictate that the error here was harmless and appellate counsel cannot be faulted for failing to raise it because lewd or lascivious molestation of a child under 12, a violation of section
800.04(5)(b), is the next-step removed lesser included offense of capital sexual battery....
...truct the jury on simple battery was harmless. We find no merit to this contention. Lewd or lascivious molestation is not a necessarily lesser included offense of capital sexual battery, and under the law as it existed prior to the 1999 amendment to section
800.04, it likewise was not a permissive lesser included offense of any form of sexual battery. See Welsh v. State,
850 So.2d 467 (Fla.2003). For post-1999 offenses, lewd or lascivious battery of a child between 12 and 15 under section
800.04(4) may be a permissive lesser included offense of sexual battery. See Williams v. State,
957 So.2d 595 (Fla. 2007). However, unlike lewd or lascivious battery of a child between 12 and 15, lewd or lascivious molestation of a child under 12 requires that the touching be "in a lewd or lascivious manner." See §
800.04(5), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1994 WL 576096
...Further, the trial judge gave the instruction on the lesser included offenses as requested by Belcher's trial counsel. For these reasons, we affirm the convictions and the sentences imposed. AFFIRMED. HARRIS, C.J., and PETERSON, J., concur. NOTES [1] § 800.04(1), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1999 WL 936354
...methods of committing battery on a law enforcement officer where only one alternative was charged in the information. We agree. See O'Bryan v. State,
692 So.2d 290 (Fla. 1st DCA 1997) (holding that it was error to instruct on theory of violation of section
800.04, Florida Statutes, which had not been charged in information); see also Fuentes v....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1998 WL 716948
...Ray Poole, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant, William Burnett, appeals two of his three convictions for lewd and lascivious conduct in the presence of a minor. [1] The State charged appellant, among other things, with two violations of section 800.04(4), Florida Statutes (1995), for displaying adult videos to two minors and watching the videos with them....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1989 WL 135389
...Butterworth, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee. LEHAN, Judge. Defendant appeals from his convictions for five counts of a lewd and lascivious act committed in the presence of a child in violation of section 800.04, Florida Statutes (1987). Section 800.04(3) provides that one is guilty of a felony of the second degree who "knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years." We affirm....
...1951) (theft of eleven cattle belonging to different owners constituted one larceny). Defendant's argument is persuasive, but we are persuaded to affirm by the recognition in Judge Booth's partially concurring and partially dissenting opinion in Lifka v. State,
530 So.2d 371, 377 (Fla. 1st DCA 1988), that "section
800.04, Florida Statutes, was specifically designed to protect children under the age of sixteen." Thus, we agree with the argument of the state that five different crimes were committed....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 16703, 2015 WL 6757629
...11,2015). The defendant was charged with two counts of lewd or lascivious battery; one count alleged digital penetration and the other alleged penile union or penetration with the 'Victim’s vagina. The statute reads, in relevant part, as follows: 800.04....
...Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age [[Image here]] (4) Lewd or lascivious battery.— (a) A person commits lewd or lascivious battery by: . •■1.-'.Engaging-in sexual activity with a person 12 years of age or older but less than 16 years of age.... § 800.04(4)(a), Fla. Stat. (2011). The related standard jury instruction-reads: 11.10(a) LEWD OR LASCIVIOUS BATTERY (ENGAGING IN SEXUAL ACTIVITY) § 800.04(4)(a)l, Fla....
...The First District agreed, reasoning: Contrary to the trial court’s ruling, unnatural and lascivious act is a permissive lesser-included offense of lewd and lascivious molestation. [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....
...e counsel failed to make any such request. Nevertheless, trial courts should give the instruction in all cases involving Williams rule evidence, whether or not requested by defense counsel. REVERSED and REMANDED. ORFINGER and EVANDER, JJ., concur. . § 800.04(4)(a), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 17373, 2011 WL 5169972
...mposed electronic monitoring as a condition of probation. Concluding that the trial court did not, we reverse. In 2003, Blue pled no contest to committing lewd and lascivious battery on a person between the ages of twelve and sixteen in violation of section 800.04(4)(a), Florida Statutes (2000)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1996 WL 660937
...Berry of Amari, Theriac & Eisenmenger, P.A., Cocoa, for Respondent. GRIFFIN, Judge. The State of Florida seeks certiorari to quash orders of the lower court which have allowed the defendant below, Michael Raleigh, to assert consent as a defense to charges of lewd assault in violation of section 800.04, Florida Statutes (1993). Raleigh was sixteen or seventeen years old at the time of the charged offenses, both alleged victims were age fifteen. [1] Raleigh moved to dismiss the charges, asserting that section 800.04, Florida Statutes (1993) [2] is *622 unconstitutional as applied to him because it precludes his raising as a defense the consent of the victims. The lower court entered an order in each case finding that section 800.04, Florida Statutes, is facially constitutional; however, relying on the Supreme Court of Florida's reasoning and holding in B.B....
...e to the crime charged." The lower court held that evidence of the victim's consent would be admissible, and that the jury instructions would be modified accordingly. In Jones v. State,
640 So.2d 1084 (Fla.1994), the supreme court squarely held that section
800.04, Florida Statutes, is constitutional because the state's compelling interest in protecting children outweighed a minor's right to privacy....
...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. The statutory provision removing the defense of consent from the crimes identified in section
800.04 is clearly constitutional where the perpetrator is eighteen years old and the victim is fourteen....
...[5] We grant the writ in the consolidated appeals and vacate the order authorizing the consent defense. WRIT GRANTED. HARRIS, J., concurs and concurs specially, with opinion. THOMPSON, J., dissents, with opinion. HARRIS, Judge, concurring specially: I agree with Judge Griffin that the fact that this case involves section
800.04, Florida Statutes, as opposed to section
794.05, Florida Statutes, brings it within the ambit of Jones v. State,
640 So.2d 1084 (Fla.1994). In Jones, the supreme court in reviewing a prosecution under section
800.04 focused on the privacy rights of the victim (a minor) and held that the State has sufficient "compelling interest" to prohibit sexual activity with such minor even with the minor's consent....
...that such condition need not be present in the perpetrator, was also within the protected classhe was unmarried and under eighteen years of age. However, even if the defendant herein is a minor, he is not within the protected class established by section 800.04....
...might have some relevance if both the victim and the defendant were under the age of sixteen, unless we are willing to hold that a youth of sixteen or seventeen years of age has a constitutional right to have sex with a person as young as twelve, then B.B. can have no relevancy to a prosecution under section 800.04. *624 I view section 800.04, as interpreted by Jones, to protect youngsters under sixteen years of age from even consensual sex with persons (even minors) sixteen years of age and older....
...Further, I disagree with this court that "B.B. plainly is limited to its statutory target [section
794.05]." Since both B.B. and this case implicate a minor's right to privacy when the minor is prosecuted for sexual activity with another minor, the reasoning should apply to section
800.04, as well....
...holds that in a minor-minor situation, prosecution is not the least intrusive means of furthering the state's compelling interest in protecting minors from sexual activity. If B.B. applies only to section
794.05, a minor escapes prosecution for having consensual sex with another minor, but is subject to prosecution under section
800.04 for the same activity....
...See Chief Justice Grimes' dissent in B.B.,
659 So.2d at 261-62. I would deny the petitions because B.B. is controlling and would certify this question to the Supreme Court: Whether Florida's privacy amendment, Article I, Section 23 of the Florida Constitution, 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. He was sixteen at the time of these offenses. In case 95-103250-CF-A-F, defendant was charged with two counts of lewd and lascivious assault on a child, S.J., in violation of section
800.04(3), Florida Statutes. He was seventeen when these acts were alleged to have occurred. [2]
800.04 Lewd, lascivious, or indecent assault or act upon or in presence of child.A person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; (2) Commits actual or simulated sexual i...
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1991 WL 86821
...Delegal, of Law Office of Kenneth E. Delegal, Fort Lauderdale, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. Walter Watson was charged by information with a violation of section 800.04(1), Florida Statutes (1989) for committing a lewd, lascivious and indecent act upon or in the presence of a child....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1991 WL 87667
...and that he wanted a jury to consider these matters. These matters do not establish good cause. Neither the victim's appearance nor consent is a valid defense to the charge of committing a lewd and lascivious act on a child under the age of 16. See § 800.04(2), Fla....
...Sorakrai,
543 So.2d 294, 295 (Fla. 2d DCA 1989) (neither ignorance, misrepresentation, nor belief that victim is 16 years of age or older is available as defense to defendant charged with committing a lewd and lascivious act upon child under age of 16 years in violation of Section
800.04)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2001 WL 539668
...ns; and that Schmitt had videotaped his daughter and her friend "stripping down to their panties" and swimming nude. Id. at 408. The application also alleged violations of sections
827.071, Florida Statutes (1987) (sexual performance by a child) and
800.04, Florida Statutes (1987) (lewdness in the presence of a child)....
...However, the court held that the application alleged sufficient facts to establish probable cause as to the element of "actual lewd exhibition of the genitals" in section
827.071(1)(g), as well as lewdness in the presence of a child, proscribed by section
800.04....
...essive object of his attention" and that an "overall focus of Schmitt's conduct tended to show a lewd *236 intent," thus, creating a substantial basis for believing that the search would probably yield evidence of a violation of sections
827.071 and
800.04....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2002 WL 825709
...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)....
...ion
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 act, section
800.04, Florida Statutes (1997), has, by specifically excluding sexual battery as a means of perpetrating such act, removed sexual battery as an element involved in the commission of a lewd and lascivious act....
...tery" was included to differentiate between crimes of sexual battery and lewd and lascivious conduct. Had the phrase been excluded, a person having forcible sexual intercourse with a child under sixteen would be guilty of both crimes. As now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive....
...93-156, §§ 3, 27, at 911, 933, Laws of Fla. (making amendment effective as to crimes occurring on or after October 1, 1993). Thus, because Kolaric was not convicted of sexual battery, but rather sexual activity, the exclusionary language found in section 800.04, barring from its ambit conduct which also constitutes the crime of sexual battery, did not preclude an instruction informing the jury that a lewd and lascivious act was a permissive lesser included offense to sexual activity....
...on lewd and lascivious assault as a permissive lesser included offense to capital sexual battery. [3] AFFIRMED. VAN NORTWICK and BROWNING, JJ., concur. 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....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2003 WL 21105340
...Francis Michael Nicholas appeals the written order of the trial court finding that he is a sexual predator. As he was denied a hearing on this issue, we reverse. Nicholas pled no contest to a single count of lewd and lascivious assault on a child under 16 in violation of section 800.04, Florida Statutes (2001), and was sentenced to prison, followed by probation....
...xual predator. The following day and without a hearing or notice to *827 Nicholas, the trial court executed a written order finding Nicholas to be a sexual predator. Section
775.21(4)(a)1, Florida Statutes (2001), provides that when the violation of §
800.04 is a second-degree felony, the defendant must have a previous conviction of certain enumerated offenses in order for the sexual predator designation to apply....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 300257
...al 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. Stat. (1995). [2] §
800.04(3), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1992 WL 98548
...ZEHMER, Judge (dissenting). Anderson appeals his conviction of lewd and lascivious or indecent acts upon a child under 16 years of age. It was alleged, and proof was introduced at trial, that the defendant touched the vagina of the child victim in violation of section 800.04, Florida Statutes (1987)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 1931, 2009 WL 529431
...Therefore, defendant meets the initial requirements of §
948.30(3), since he committed a "crime" 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....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2005 WL 714037
...We conclude that he was properly convicted on two of the counts and, therefore, affirm in part and reverse in part. Count I charged that Paul intentionally touched the victim's genital area, or the clothing covering it, contrary to Florida Statute 800.04(5). Count V charged that he intentionally touched the victim in a lewd or lascivious manner by kissing his neck, contrary to Florida Statute 800.04(6). Count IV charged that he intentionally touched the victim in a lewd or lascivious manner by rubbing his penis on the victim's stomach area, contrary to Florida Statute 800.04(6). Count VI charged that Paul intentionally exposed his genitals in a lewd or lascivious manner in the presence of the victim, contrary to Florida Statute 800.04(7)....
...In the present case, two aspects of double jeopardy are in question: (1) whether there was any break between the lewd acts committed by Paul where he could reflect and form criminal intent before the next act, and (2) whether Paul may be convicted of separate offenses where the legislature, in 1997, amended section 800.04(4)-(7), which now criminalizes separate and distinct behaviors....
...his penis to the victim and Paul rubbing his penis on the victim). This is demonstrated by the fact that Paul deliberately moved the victim from the more public living room into the more private bedroom where they were less likely to be discovered. Section 800.04 was substantially re-written, effective October 1, 1999. Subsection 800.04(4), lewd or lascivious battery, not charged in the counts in question, covers a defendant who "(a) engages in sexual activity with a person 12 years of age or older but less than 16 years of age....
...touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator. . . ." Subsection 800.04(6), lewd or lascivious conduct, covers a defendant who "1. Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or 2. Solicits a person under 16 years of age to commit a lewd or lascivious act." Subsection 800.04(7), lewd or lascivious exhibition, covers a defendant who "1....
...299,
52 S.Ct. 180,
76 L.Ed. 306 (1932). The state contends that the legislature recognized, in adopting these amendments, that it was creating separate offenses. Ch. 99-201, Laws of Fla. Nevertheless, this court has not read the statutory scheme of section
800.04 as authorizing separate convictions and sentences for each of the cumulative acts occurring in the course of one continuous and almost simultaneous act of lewd and lascivious activity on a minor, particularly where each lesser act leads up to the most serious of the charges....
...ivious molestation, lewd or lascivious exhibition, and lewd or lascivious conduct. The court reviewed the statute and concluded that the legislature intended, by the amendment, to authorize separate convictions and punishments for each subsection of section 800.04, stating: The language and structure of the amended statute does focus on individual acts and creates separate criminal offenses in each subsection that designates a specific degree of the crime and the *12 punishment to be imposed for each....
...ubsection. This court has recently followed a different course in a similar case. See Mijarez. Mijarez was charged with kissing and fondling a minor, having her disrobe, and engaging in intercourse. He was charged with violating multiple sections of section 800.04. [1] In Mijarez, we did not clearly address the issue presented here, in the context of charging the 800.04 subsections in multiple counts, reasoning instead that it was a single assault....
...State,
889 So.2d 827 (Fla. 4th DCA 2004); Coffield v. State,
872 So.2d 430 (Fla. 4th DCA 2004); and Eaddy v. State,
789 So.2d 1093 (Fla. 4th DCA 2001). The issues are identical. Citing Hunsicker v. State,
881 So.2d 1166 (Fla. 5th DCA 2004), the majority argue that because section
800.04 is separated into subparagraphs for each sexual act that constitutes lewd and lascivious conduct, the several sexual acts committed by Paul in this single sexual encounter involve discrete crimes....
...ourt. I do not agree with the analysis regarding the statutory structure of subparagraphs discussed in Hunsicker, to authorize separate convictions and punishments for this kind of single sexual encounter. Hunsicker held that the pre-1999 version of section 800.04 did not sufficiently divide or separate the various forms of lewd and lascivious offenses that the statute instead focused on activity in an episodic sense rather than the individual acts making up the activity....
...Although Hunsicker did not draw attention to this fact, all were then treated as second degree felonies. [2] The 1999 amendments to this statute divided all lewd and lascivious acts in the presence of a child into four basic types. Subsection (4) of section 800.04 deals with lewd and lascivious battery; subsection (5) with molestation; subsection (6) with lewd and lascivious conduct; subsection (7) with lewd and lascivious exhibition....
...part. These new offenses are punished in descending order of severity, the worst as a first degree felony, the least as a third degree felony. In this case, defendant was charged with, and convicted of, three different lewd and lascivious acts under section 800.04, all arising from the same encounter....
...(7). [3] Because the actual text of the new statute creates separate crimes, and each of them may constitute permissive lesser included offenses in one of the other offenses, I do not think Hunsicker's conclusion is correct. In fact, because the new section 800.04 offenses provide for punishment in descending order of severity, I think the legislature really designed this statute to be used hierarchically....
...I would follow our precedents and reverse the multiple convictions in this case. NOTES [1] The record in Mijarez reflects one count of violating subsection (4) and two counts of violating subsection 5(a) and (c). [2] Hunsicker erroneously cites Coffield as having been decided under the pre-1999 version of section 800.04....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1998 WL 135084
...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....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 875
...Pursuant to section
92.53, Florida Statutes, the trial court permitted the State to videotape the victim's testimony for use at trial in *14 lieu of live testimony. After the victim's testimony was videotaped, the State amended its information to add Count II charging, based on the same factual event, a violation of section
800.04, Florida Statutes (Supp....
..." in regard to the lewd assault charge. The state's burden of proof is the same as to all criminal charges to convince the jury of the guilt of the accused beyond a reasonable doubt. The trial court may have been alluding to the 1984 amendment to section 800.04 in which the legislature has apparently attempted to make a consensual sexual penetration of a child under the age of sixteen years a violation of section 800.04(2), Florida Statutes (Supp....
...[1] Additionally, the Supreme Court of Florida in State v. Lanier,
464 So.2d 1192 (Fla. 1985), appears to have held that a male who engages in consensual sexual intercourse with a twelve year old girl is, as a matter of law, guilty of a violation of section
800.04, Florida Statutes, as section
800.04 existed both prior and subsequent to the 1984 amendment. Part of the problem in this case is that Count II of the information charging lewd and lascivious assault does not allege sexual battery upon a child under the age of sixteen years under section
800.04(2), Florida Statutes (Supp. 1984). Instead, Count II uses language from section
800.04(1) alleging that the defendant did handle, fondle, or make an assault upon (a child under sixteen years of age in a lewd, etc., manner, without committing the crime of sexual battery) by inserting his penis into the vagina of [the child]. This is in effect the way the information was written in Lanier. [2] The only way for this information and the holding in State v. Lanier to be correct under section
800.04(1) is if sexual intercourse or sexual penetration, [3] as a matter of law, constitutes handling, fondling or assaulting as prohibited by section
800.04(1). 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)....
...This appears to be the necessary result of the holding in State v. 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....
...Rather than eliminating the consent and chastity elements under these statutes, or creating a new sexual battery offense not requiring non-consent or chastity, the legislature reacted by declaring that it always intended to prohibit such conduct under § 800.04, Fla....
...[3] The definition of sexual battery in §
794.011(1)(h), Fla. Stat. (1983). [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.
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2002 WL 440552
...on. But the motion did not comply with rule 3.850 because it was not sworn. We have determined to treat it as a motion pursuant to rule 3.800(a). Accordingly, we only address ground three of the motion, which claims Joslin's sentence is illegal. [2] § 800.04, Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2008 WL 723922
...ndant'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....
...twenty-eight counts of promoting sexual performance by a child. We believe, however, that appellant's conduct in coercing his daughter to exhibit her genitals in pornographic photographs does fall within the child molestation activity proscribed by section 800.04. Section 800.04(6)(a)(2) states that one who solicits a person under sixteen years of age to commit a lewd or lascivious act commits lewd or lascivious conduct....
...opensity for such criminal conduct). Furthermore, the probative value of the photographs was not outweighed by any prejudicial effect upon appellant. Regardless of whether appellant's conduct falls within the child molestation activity proscribed by section
800.04, we do not find that the photographs constitute "collateral crimes" evidence, such that section
90.404(2)(b) governs their admissibility....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2001 WL 261646
...The trial judge decided that sexual contact had occurred based on evidence produced at trial. We reverse and remand for resentencing, because the trial judge's finding of sexual contact conflicts with the jury's verdict. Appellant was charged with lewd and lascivious act upon a child, a second-degree felony under section 800.04, Florida Statutes (1997), by unlawfully handling, fondling, or making an assault on a 15-year-old female in a lewd and lascivious manner by penetration or union of the vagina of said [victim] with his sexual organ and/or by fondling an...
CopyCited 3 times | Published | Supreme Court of Florida | 1988 WL 21004
...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. State,
498 So.2d 534 (Fla. 1st DCA 1986). We note the Second District Court of Appeal has taken a contrary view in Connell v. State,
502 So.2d 1272 (Fla. 2d DCA 1987), and applied the Lerma view to a conviction under section
800.04, Florida Statutes....
...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....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2008 WL 2572544
...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....
CopyCited 3 times | Published | Supreme Court of Florida | 1995 Fla. LEXIS 1063
05 requires that the child be chaste whereas section
800.04 does not. Indeed, the latter statute states
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1999 WL 415185
...Rogers, Assistant Attorney General, West Palm Beach, for appellee. OWEN, WILLIAM C., Jr., Senior Judge. Appellant was charged with and convicted of lewd assault by committing an act defined as sexual battery upon a child under the age of 16 years, an offense proscribed by Section 800.04(3), Florida Statutes (1995)....
...endant sustains from the admission of such evidence arises from the jury hearing it, not from when the jury hears it. Appellant was charged with lewd assault by committing an act defined as sexual battery on a child under 16 years of age contrary to section 800.04(3), Florida Statutes (1995)....
...794.011(1)(h) upon a child under the age of 16 years. Whether it is designated as a lewd act or a lewd assault, the substantive offense remains the same. In either case, the proof necessary to convict is identical, assault not being an element under section 800.04(3). Unlike *390 O'Bryan, where the trial court instructed on a different subsection of section 800.04 than that under which the defendant was charged, here the court charged the jury on subsection 800.04(3), with which appellant was charged....
...Appellant also relies on dicta in this court's opinion in Gaines v. State,
652 So.2d 458 (Fla. 4th DCA 1995) (that the failure of the court to give an instruction defining assault was not harmless error). Gaines is distinguishable. The offense with which Mr. Gaines was charged was lewd assault under section
800.04(1), which includes "assault" in the disjunctive as one of the means by which the offense can be committed....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1528
...As the state contends, this court has recently distinguished the supreme court's holding in Lerma v. State,
497 So.2d 736 (Fla. 1986), wherein the court stated that psychological trauma can never be used to depart in a sexual battery case, as being inapplicable to prosecutions under section
800.04 Florida Statutes....
...1st DCA 1986), this court refused to follow Lerma where, *1168 unlike the instant case, the defendant pled guilty to aggravated child abuse, not lewd and lascivious assault. In Barrentine v. State,
504 So.2d 533 (Fla. 1st DCA 1987), appellant was convicted of lewd and lascivious assault upon a child in violation of section,
800.04 Florida Statutes, as in the instant case....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2012 WL 2361519, 2012 Fla. App. LEXIS 10118
...DiGuilio,
491 So.2d 1129, 1138 (Fla.1986). V. CONCLUSION For the foregoing reasons, we reverse Mr. Geissler’s judgment and sentences and remand for a new trial. Reversed and remanded for a new trial. NORTHCUTT and LaROSE, JJ., Concur. . § 794.01 l(2)(a), Fla. Stat. (2006, 2007). . §
800.04(5)(b), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 8927, 2010 WL 2471904
...ion of the victim’s mouth by the penis of [appellant]” (count 2), pursuant to section
794.011(2)(a), Florida Statutes (2006). He was also charged with lewd or lascivious molestation of a victim less than 12 years of age (counts 3-4), pursuant to section
800.04(5)(b) (2006)....
...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....
...vious molestation occur in the same criminal episode, they constitute the same offense for double jeopardy purposes and may not be punished separately,” reasoning “sexual battery cannot occur without a touching of one of the body parts listed in section 800.04(5).” Id....
...as those proscribed in the sexual battery statute, are distinct criminal acts that the Florida Legislature has decided warrant multiple punishments.” In Meshell, the defendant was convicted of two counts of lewd and lascivious battery pursuant to section 800.04, one count by vaginal penetration and one count by oral penetration....
...e a “temporal break” sufficient for the defendant to have formed a new criminal intent. Id. at 134 . *374 However, the supreme court found, “[distinct acts of sexual battery do not require a ‘temporal break’ .... the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal penetration) are of a separate character and type requiring different elements of proof and are, therefore, distinct criminal acts....
...Like the sexual battery statute, the lewd or lascivious molestation statute includes “sexual acts of a separate character and type requiring different elements of proof, such as those proscribed in the sexual battery statute .... ” Meshell,
2 So.3d at 134 . Section
800.04(5)(a) states a person commits lewd or lascivious molestation who “intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of...
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1991 WL 144241
...Appellant unlocked the door and the wife entered the bathroom and found the child sitting on the floor in diapers "covered with baby oil." Appellant told his wife he had been masturbating while caring for the child. The state charged appellant with violating section 800.04(3), Florida Statutes (1987), which reads: Any person who 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......
...appellant's act of masturbation took place in the presence of his daughter. But they differed as to what the phrase "in the presence of" means. We note that no legislative history is available as to the meaning of that phrase which has been part of section 800.04 for over forty-five years....
...2798,
101 L.Ed.2d 857 (1988) (confrontation clause prohibits screen that blocks defendant's view as victim testified). None of the foregoing examples attain legal significance simply because they take place where the affected person is located. Therefore, we further conclude that a violation of section
800.04(3) cannot occur unless a child sees or senses [2] that a lewd or lascivious act is happening. For example, if one or more persons commit a lewd or lascivious act in a place where a child lays sleeping they do not violate section
800.04(3)....
...doubt (1) the daughter was under the age of sixteen years and (2) appellant knowingly committed a lewd or lascivious act in the presence of his daughter. LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY F.S. 800.04, Fla.Std....
...We find no merit as to the remaining issues. However, we certify the following question to be of great public importance: DOES THE STATE HAVE TO PROVE THAT THE VICTIM SAW OR SENSED THE LEWD OR LASCIVIOUS ACT IN THE PROSECUTION OF A DEFENDANT CHARGED UNDER SECTION 800.04(3), FLORIDA STATUTES (1987)? REVERSED AND REMANDED....
...e a form of hue and cry for due process not fitting for an appellate court unlike the French Assembly or Roman Coliseum. At stake in this criminal appeal was the defendant's freedom. The parties provided us no legislative history of any nature as to section 800.04(3), Florida Statutes (1987), but we have all concluded that the section requires the child see or sense the lewd or lascivious act to support a conviction thereunder....
...t but does sense that act is happening. [3] While the trial judge referred to the statute at sentencing as the "indecent assault statute," the section with which the defendant was charged clearly did not involve any unlawful touching of the child as section 800.04(1) would have covered: 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[.]
CopyCited 3 times | Published | Supreme Court of Florida | 1981 Fla. LEXIS 2819
convicted Ray of lewd assault as proscribed by section
800.04, Florida Statutes (1975).2 Two days after the
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2001 WL 844756
...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....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1474491
...testified that as she waited on the bus ramp with a group of friends, M.L.C. walked up behind her and slid his hand across her buttocks, in a quick second. This was the extent of the evidence undergirding counts one and four of the petition. Lewd or lascivious molestation, as provided in section 800.04(5)(a),(c)(1), Florida Statutes (2002), proscribes the offender's intentional touch of the victim's buttocks or the clothing covering them "in a lewd or lascivious manner." Here, however, there is no evidence of lewd or lascivious intent in M.L.C.'s split-second contact with the girls' buttocks....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2006 WL 1933387
...Dunlevy, Assistant Attorney General, Tampa, for Appellee. DAVIS, Judge. Russell Insko appeals his judgment and sentence for lewd or lascivious conduct. We affirm. Insko was tried by jury on the charge of lewd or lascivious conduct by a person over eighteen on a person under sixteen pursuant to section 800.04(6)(a)(2) and (b), Florida Statutes (2001)....
...The trial court determined that the age of the accused was not an element of the offense, that the State could proceed to trial on the charge of lewd or lascivious act on a person under sixteen, and that if the jury returned a verdict of guilty, it would be limited to the sentence provided for in section 800.04(6)(c)the lesser punishment specified for an offender under the age of eighteen....
...Accordingly, the trial court denied Insko's motion to dismiss. Insko then entered a negotiated no contest plea, reserving his right to appeal the trial court's decision. The trial court found that the ruling on the motion to dismiss was dispositive. Section 800.04(6)(a) defines lewd or lascivious conduct....
...offense; however, the jury instructions advised the jury that the only lesser included offense was assault. Based on the instruction given to the jury and the verdict form, it appears that the jury did find Insko guilty of the offense as defined by section 800.04(6)(a) and then found Insko to be under eighteen, perhaps as a "jury pardon" or because the State failed to prove his age....
...However, we certify the following question to the Supreme Court of Florida as one of great public importance: IN LIGHT OF THE RULING IN GLOVER v. STATE,
863 So.2d 236 (Fla. 2003), IS THE AGE OF THE OFFENDER AN ELEMENT OF THE *683 OFFENSE OF LEWD OR LASCIVIOUS CONDUCT UNDER SECTION
800.04(6), FLORIDA STATUTES? Affirmed; question certified....
...I write separately to outline two additional grounds upon which I believe Insko's judgment and sentence may be affirmed. First, Insko is estopped to argue that he may not be retried and convicted of the third-degree felony offense of lewd or lascivious conduct by a person less than eighteen years of age under section 800.04(6)(a)(2) and (c), Florida Statutes (2001)....
...which he had previously been acquitted. Under these circumstances, Insko is now estopped to assert that he may not be retried for the third-degree felony offense of lewd or lascivious conduct upon a person under sixteen years of age in violation of section 800.04(6)(a)(2) and (c)....
...ad of fifteen years. He asked for a new trial, and this court granted his request. Under these circumstances, Insko must take "Yes" for an answer. Therefore, even if the offender's age is an element of the offense of lewd or lascivious conduct under section 800.04(6), Insko's judgment and sentence should still be affirmed....
...NOTES [1] Although there is some argument made as to whether the State properly proved Insko's age at the trial, the record before this court is silent as to this issue. [2] In the opinion disposing of Insko's first appeal, Judge Northcutt specifically noted that Insko was charged with a second-degree felony under section 800.04(6)(a)(2) and (b) but was found guilty of a third-degree felony under section 800.04(6)(c)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 258, 2016 WL 57116
...stated she did not let appellee touch her in any of
these areas, the actions described by S.G. were sufficient to justify law
enforcement’s subsequent investigation as they could have been construed as
an attempt to commit a lewd or lascivious molestation under section 800.04(5),
Florida Statutes:
(5) LEWD OR LASCIVIOUS MOLESTATION.—
(a) A person who intentionally touches in a lewd or lascivious
manner the breasts, genitals, genital area, or buttocks, or the
clothing c...
...An offender 18 years of age or older who commits lewd or
lascivious molestation against a victim 12 years of age or older but
less than 16 years of age commits a felony of the second degree,
punishable as provided in s.
775.082, s.
775.083, or s.
775.084.
§
800.04(5), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1995 WL 26799
...tutes. COUNT II: ... did unlawfully and knowingly commit a lewd and lascivious act in the presence of a child under the age of sixteen (16) years, to-wit: [name], age 6 or 7 years, by committing a sexual battery *323 upon said child, in violation of Section 800.04, Florida Statutes....
...Any such error, however, was waived by the failure to challenge the information. Fountain v. State,
623 So.2d 572 (Fla. 1st DCA), review denied,
629 So.2d 132 (Fla. 1993). We affirm the judgment and sentence for battery. In Count II, Jozens was charged with violating section
800.04, Florida Statutes, "by committing a sexual battery upon" the victim "age 6 or 7 years." The statute provides that a person who: (1) Handles, fondles or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or...
...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....
...upon persons 12 years of age or older absent consent. "[I]ntercourse with a six-year-old child constitute[s] the crime of sexual battery regardless of unchastity or consent. By definition such activity could not be lewd and lascivious conduct under section
800.04 [(1), (3) or (4)]." 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....
...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. Hightower. Hence, if Jozens committed acts defined as sexual battery, as alleged in Count II, he *324 could not be convicted of lewd and lascivious conduct under subsection (3) of section
800.04....
...1983) (the information, which was drafted substantially in the language of the statute, was sufficient); Duboise v. State,
520 So.2d 260 (Fla. 1988); State v. Waters,
436 So.2d 66 (Fla. 1983). Although unartfully worded, count II does not completely fail to charge a crime under section
800.04, Florida Statutes. I would find that it adequately charged the appellant with knowingly committing any lewd and lascivious act in the presence of a child under the age of 16 years. Section
800.04(4), Florida Statutes....
...neral description of "a sexual battery" is sufficient. See, e.g., Waters, supra ; compare State ex. rel . Swanboro v. Mayo,
155 Fla. 330,
19 So.2d 883 (1944). State v. Hightower,
509 So.2d 1078 (Fla. 1987), is not to the contrary since it dealt with section
800.04(2), Florida Statutes (1987) (now section
800.04(3) (1993)), and does not preclude the use of "sexual battery" as a descriptive term under subsection (4). I note the record shows that the trial court erroneously instructed the jury as to subsections (1) and (3) of section
800.04, Florida Statutes....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 12745
...violation of probation, and he challenges the trial court's forfeiture of his accrued gain-time. We reverse on both points. In October of 1989 Bogan was sentenced to five years' imprisonment for lewd and lascivious assault on a minor in violation of section 800.04, Florida Statutes (1989)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1993 WL 5299
...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. However, we vacate the conviction for count two which alleged a violation of section
800.04(2), Florida Statutes, sexual battery upon a child under sixteen years of age, a second-degree felony erroneously shown on the judgment as a first-degree felony....
...y exclusive when they involve a single incident. State v. Hightower,
509 So.2d 1078, 1079 (Fla. 1987). The facts of this case indicate the occurrence of a single incident involving a sexual battery. Therefore, conviction of the offense charged under section
800.04(2) was improper....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1995 WL 10440
...The state filed an information charging Mr. McConn with both lewd and lascivious conduct and sexual activity on each date. The two counts charging lewd and lascivious conduct alleged that Mr. McConn placed his exposed penis between the legs of the victim in violation of section 800.04(1), Florida Statutes (1991)....
...The state argues that it may divide the sexual encounter into two sequential offenses under Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), and section
775.021, Florida Statutes (1991). In Audano we considered a similar combination of sexual battery and lewd and lascivious conduct under section
800.04(1)....
...2d DCA 1993) (same); State v. Colbert,
522 So.2d 436 (Fla. 2d DCA 1988) (same), approved,
569 So.2d 433 (Fla. 1990). Unlike the offense of sexual battery, the offense of sexual activity does not necessarily bar a conviction for lewd and lascivious conduct in all cases. Section
800.04 provides in part: Lewd, lascivious, or indecent assault or act upon or in presence of child....
...tory language in chapter 794, one does not commit the crime of sexual battery by engaging in consensual sexual activity with a child over the age of 12. [3] Accordingly, such consensual acts are typically charged as lewd and lascivious conduct under section 800.04(3)....
...ty. In Hallberg v. State,
621 So.2d 693 (Fla. 2d DCA 1993), rev'd on other grounds,
649 So.2d 1355 (Fla. 1994), we held that a defendant could be convicted of both sexual activity with a child in custodial authority and lewd and lascivious act under section
800.04(3)....
...First, there were multiple sexual encounters in Hallberg so that the jury was not required to divide one consensual sexual encounter into its parts in order to convict the defendant of both crimes. Second, by charging a lewd and lascivious act under section 800.04(3) rather than 800.04(1), the state was not attempting in Hallberg to separate an indecent assault from the sexual contact that followed without any significant interruption....
...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....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 49353
...RALLO into or in union with the anus of said child, which act as stated was lewd and lascivious in the presence of a child under the age of sixteen years, namely, N.B., but without committing the crime of sexual battery upon the said N.B.; contrary to Chapter 800.04, Florida Statutes, and against the peace and dignity of the State of Florida. Rallo argues that there was no evidence to support a finding that his penis ever came into contact with N.B.'s anus as N.B. testified that he did not feel anything other than Rallo's hands. The State responds that section 800.04 includes conduct which simulates that a sexual battery is being or will be committed and that Rallo's actions made N.B....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2005 WL 264113
...which may be waived, and does not render information void). Accordingly, we dismiss Hedglin's appeal for lack of jurisdiction. See, e.g., Teague v. State,
728 So.2d 1203 (Fla. 5th DCA 1999). DISMISSED. SAWAYA, C.J., and MONACO, J., concur. NOTES [1] §
800.04(5)(b), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1997 WL 39603
...for Appellant. Robert A. Butterworth, Attorney General; Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant, convicted by a jury of lewd and lascivious assault upon a child of less than sixteen years of age (section 800.04(1), Florida Statutes), raises two issues on appeal....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2012 WL 555418, 2012 Fla. App. LEXIS 2526
...and intentionally touch the breasts, genitals, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks, of D.M.(a minor), a person 12 years of age or older, but less than 16 years of age, in violation of s.800.04(5)(c)2, Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2009 WL 413433
...GRIFFIN and COHEN, JJ., concur. NOTES [1] We are cognizant of the recent decision of the Florida Supreme Court in Meshell v. State,
980 So.2d 1169 (Fla. 5th DCA 2008), decision quashed,
2 So.3d 132 (Fla.2009), which found that for crimes of lewd or lascivious battery, section
800.04(4), Florida Statutes (2006), these could be of a separate character and type requiring different elements of proof. Under our facts, however, and section
800.04(6)(c), Florida Statutes (2006), the illegal conduct does not involve "sexual activity." With only one exception, not relevant to this appeal, lewd or lascivious conduct only requires the intentional touching of someone under age 16 in...
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 436
...victions have not been obtained. Defendant contends that since he was found not guilty on the charge of sexual battery, and since no conviction was sought or obtained for performing lewd and lascivious acts in the presence of a child [a violation of § 800.04, Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2002 WL 215018
...a constitutional certainty. Instead, these sentencing factors may be determined by the judge by a preponderance of the evidence. Id. at 110 (citing Apprendi,
530 U.S. at 490,
120 S.Ct. 2348). Gilson was charged with lewd and lascivious battery under section
800.04(4) which requires the state to "prove, beyond a reasonable doubt, that the accused engaged in either (1) oral, anal or vaginal penetration of the victim, (2) union with the victim's sexual organ, or (3) anal or vaginal penetration of t...
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1991 WL 15508
...Schreiber, Public Defender, Seventeenth Judicial Circuit and Susan L. Porter, Asst. Public Defender, Fort Lauderdale, and Johnny McCray, Pompano Beach, for respondents. WARNER, Judge. This petition for writ of certiorari challenges the trial court's order holding unconstitutional a portion of section 800.04, Florida Statutes (1989), providing that consent is not a defense to violations of the statute prohibiting, in general, sexual acts performed on a child under the age of sixteen. The state challenges both the standing of the respondents to raise the issue and the holding of unconstitutionality. Briefly, the respondents were charged with violation of section 800.04(2), Florida *1314 Statutes (1989), by committing an act of sexual battery (namely having sexual intercourse) upon a child of less than sixteen years of age, after a report to the police by the minor victim. The respondents filed a "Motion to Allow Presentation of a Consent Defense" claiming that section 800.04, Florida Statutes (1989), barring the consent defense violated the minor's right of privacy guaranteed by Article I, Section 23, of the Florida Constitution, and further denied respondents due process of law....
...of all minors to engage in consensual sexual activity, is not vindicated in a criminal prosecution where the minor victim is maintaining a lack of consent. Therefore, we hold that the respondents had no standing to challenge the constitutionality of section 800.04, Florida Statutes (1989), on the asserted ground of the right of sexual privacy of the minor victim....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 1434, 2010 WL 481028
...ad agreed to that designation as a part of his plea bargain. We agree with the trial court and, accordingly, affirm. Appellant had been charged with four counts of lewd or lascivious battery on a person 12 or older, but less than 16, in violation of section 800.04(4)(a), Florida Statutes (2001)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 19076, 2009 WL 4639669
...On consideration of the State's motion for rehearing and motion for rehearing en banc, this Court grants the motion for rehearing, withdraws its previous opinion, and 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....
...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). The next year, interpreting the 1999 amendments to section
800.04, see ch....
...State,
957 So.2d 595 (Fla. 2007), that despite its absence from the Schedule of Lesser Included Offenses for sexual battery contained in the Standard Jury Instructions 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)....
...ffort not to delay the trial, she intended to request the jury be charged on both sexual battery with a deadly weapon and lewd or lascivious battery. Although invited by the court to do so, she declined to amend the information to expressly allege a section 800.04(4)(a) violation....
...prepared defense of consent, and arguing she would have sought an independent analysis of the DNA evidence provided by the State had she known the State intended to pursue lewd or lascivious battery, a charge for which consent was not a defense. See § 800.04(2), Fla....
...Applying this rule in Williams, the Florida Supreme Court was satisfied that both requirements were met. As the Court stated, the State charged both that the defendant committed an act meeting the definition of sexual activity [within the meaning of section 800.04 of the Florida Statutes], and that the victim was twelve years of age or older but less than sixteen years of age....
CopyCited 3 times | Published | Supreme Court of Florida | 2013 WL 6305187
...ious [battery] [molestation] [conduct] [exhibition] [violatiny Fla. Stat.
847.0135(5) ]. The statute on which this part of the instruction is based does not explicitly refer to “lewd or lascivious” behavior. Instead, the statute simply refers to section
800.04, Florida Statutes, which covers crimes committed in the presence of a minor under the age of 16....
...The proposed jury instruction does not state that the crime must have been committed in the presence of a person under 16. Thus, we amend the proposed language in ele *757 ment one of this instruction to read as follows: (Defendant) was sentenced for [sexual battery] [violating Fla. Stat. 800.04] [violating Fla....
...hibited from contacting victim) §
784.048(7), Fla. Stat. To prove the crime of Aggravated Stalking, the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) was sentenced for [sexual battery] [violating Fla. Stat.
800.04] [violating Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1991 WL 254222
...e express no opinion on this issue. 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....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 20323, 2011 WL 6372961
...ns involve the same elements under the Blockburger test, we hold that they violate double jeopardy and reverse. Appellant was charged by information with four counts. This appeal involves only two. Count III of the information alleged a violation of section 800.04(5)(a), Florida Statutes, in March 2005 when appellant “did intentionally touch in a lewd or lascivious manner the buttocks, or the clothing covering them, of [J.B.], a person 12 years of age or older but less than 16 years of age.” Count IV alleged a violation of section 800.04(6)(a), Florida Statutes, that on the same date, appellant “did intentionally touch [J.B.], a person under 16 years of age, in a lewd or lascivious manner by rubbing his genital area against her body.” The two counts arose out of one incident, where J.B....
...2201 ,
104 L.Ed.2d 865 (1989). Because double jeopardy issues involve purely legal determinations, the standard of review is de novo. See Trotter v. State,
825 So.2d 362, 365 (Fla.2002). On appeal, appellant claims that his convictions under both sections
800.04(5)(a) and
800.04(6)(a) for conduct against the same victim during the same episode are duplicative and violate double jeopardy. Section
800.04, Florida Statutes, defines various lewd or lascivious offenses under Florida law....
...anner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.” § 800.04(5)(a), Fla. Stat. (2004). 2 Subsection (6)(a) defines lewd or lascivious conduct, providing that a person who “[ijntentionally touches a person under 16 years of age in a lewd or lascivious manner ... commits lewd or lascivious conduct.” § 800.04(6)(a), Fla....
...In Paul , the defendant had touched the victim in the genital area over the clothing and kissed the victim on the neck while in the living room. For the episode in the living room, the defendant was convicted of lewd and lascivious molestation under section 800.04(5)(a) for touching the victim’s genitals, and lewd and lascivious conduct under section 800.04(6)(a) for kissing the victim’s neck....
...If there is no clear “legislative intent to authorize separate punishments for two crimes” then a court employs the use of the Blockburger 3 test “to determine whether separate offenses exist.” Id. at 19-20. Finding no clear statement of legislative intent in its review of section
800.04, the Paul court applied the codified Blockburger analysis set forth in section
775.021....
...quires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced, at trial.’” Id. at 1173 (quoting §
775.021(4)(a), Fla. Stat. (2005)) (emphasis in Paul). In reference to offenses under sections
800.04(5)(a) and (6)(a), the Paul court explained: In comparing the elements of sections
800.04(5)(a) and
800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section
800.04(6)(a)(l) defines “lewd or lascivious conduct” as any intentional touching of “a person under 16 years of age in a lewd or lascivious manner,” while section
800.04(5)(a) defines “lewd or lascivious molestation” as the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” §
800.04, Fla....
...— that (6)(a)(l) has an element (5)(a) does not. Therefore, dual convictions and punishments are not permitted for these violations. Id. at 1173-74 (emphasis in original). The court concluded that Paul could not be convicted of both a violation of section 800.04(5)(a) and section 800.04(6)(a)(l) for the two acts in the living room....
...Applying the analysis to this case, we conclude that the two charges arose out of one criminal episode. Both acts were performed on one victim in the same location and with practically no temporal separation. See Paul. Furthermore, the “same elements” test establishes that appellant cannot be convicted under both section 800.04(5)(a) and section 800.04(6)(a) for conduct in the same criminal episode....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1995 WL 746370
...t 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.
775.082 and
921.141. Section
800.04, Florida Statutes (1993) provides in pertinent part: A person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; ....
...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. (1993), and the crime of committing a lewd or lascivious assault on a child. §
800.04, Fla.Stat....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 19923, 2011 WL 6183482
...As such, the trial court erred in denying Ramos’s motion for judgment of acquittal on that count. Counts V and VI were both based on Ramos allegedly touching the victim’s vaginal area in a lewd or lascivious manner. Count V (indecent assault) alleged that conduct contrary to section
800.04(1) occurred between September 1, 1999 and September 30, 1999. Count VI (lewd or lascivious molestation) alleged that conduct contrary to section
800.04(5)(a) and (b) occurred between October 1, 1999 and May 13, 2003. The Florida Legislature amended section
800.04 effective October 1, 1999 such that the crime of “indecent assault” was removed and the crime of “lewd or lascivious molestation” was added. Compare §
800.04(1), Fla. Stat. (1998); with §
800.04(5), Fla. Stat. (1999). Both statutes criminalize Ramos’s alleged conduct. In Gamble v. State,
870 So.2d 110 (Fla. 2d DCA 2003), the Second District reversed one of two convictions where the state charged the defendant under both section
800.04(1), Florida Statutes (1998), for conduct that occurred before October 1, 1999, and under section
800.04(5)(b) for conduct that occurred between October 1, 1999 and March 30, 2000....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 1128789
...We agree with Brake's argument that the statute is unconstitutionally vague and, accordingly, reverse his conviction. Section
787.025 makes it a third-degree felony for an adult who has previously been convicted of a sexual offense under either chapter 794 or section
800.04, or under a similar law of another jurisdiction, to intentionally lure or entice, or attempt to lure or entice, a child under the age of twelve "into a structure, dwelling, or conveyance for other than a lawful purpose." See §
787.025(2)(a)....
...use it was "defined by the latter part of the phrase that begins `by means of concealment, guile, or fraud.'" Hankin,
682 So.2d at 604. In the present case, "lawful purpose" is not defined by anything in section
787.025 or anything in chapter 794 or section
800.04, which section
787.025(2)(a) incorporates *529 by reference....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1998 WL 518507
...It is comforting, however, that except in cases in which the judge actually has a financial interest in the outcome of the trialas reflected by the cases cited by the majority judicial bias is rarely so clearly documented as in this case. NOTES [1] See Fla. R.Crim. P. 3.850. [2] §
794.011(2), Fla. Stat. (1991). [3] §
800.04(1), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 12164, 2010 WL 3238999
...Aldacosta agreed to allow the trial judge to determine whether he qualified for a conviction of felony battery. The only evidence before the court at the bench trial was a certified copy of Mr. Aldacosta's conviction in 2002 for lewd or lascivious battery, contrary to section 800.04(4), Florida Statutes (2001)....
...[i]ntentionally caus[ing] bodily harm to another person." Section
784.041(1) defines "felony battery" as "[a]ctually and intentionally touch[ing] or strik[ing] another person against the will of the other; and ... [c]aus[ing] great bodily harm, permanent disability, or permanent disfigurement." Under section
800.04(4), a person commits the offense of "lewd or lascivious battery" if he or she: (a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or (b) Encourages, forces, or entices any person less than 16 years of age to engage in sadomasochistic abuse, sexual bestiality, prostitution, or any other act involving sexual activity commits lewd or lascivious battery. ... Although section
800.04(4)(a) involves the touching of another, the statute does not require that the sexual activity be "against the will of the other" or cause "bodily harm to another person." A person who commits lewd and lascivious battery under section
800.04(4)(b) by encouraging a person less than sixteen years of age to engage in prostitution does not have to personally "touch or strike another person." We are, of course, obligated to construe criminal statutes strictly and in favor of the accused....
..."Battery" is specifically defined by statute, and section
784.03(2) does not refer to a prior conviction for "any battery." Additionally, unlike the offense of aggravated battery at issue in Warren , lewd or lascivious battery can be committed without touching or striking another person against his or her will. See §
800.04(1)(b), (4)(a)-(b)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1993 WL 309069
...We affirm his conviction for capital sexual battery without discussion. We reverse his conviction for lewd and lascivious act as charged in count two of the information because the conduct alleged in that count formed the basis for the sexual battery conviction. One cannot be convicted for a lewd act under section 800.04, Florida Statutes (1991), concerning conduct that is also a sexual battery. See § 800.04, Fla....
...State,
529 So.2d 1278, 1280 (Fla.2d 1988), we held that "[w]here a statute provides a penalty for acts in the disjunctive and the indictment alleged the acts in the conjunctive, proof of one act will suffice," citing Booker v. State, 93 (Fla. 211,
111 So. 476 (1927). Section
800.04(3) and (4) allege, in the disjunctive, the acts charged in count three in the conjunctive....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 11696, 2010 WL 3119943
...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....
...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....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1997 WL 163129
...The state appeals the appellant's sentence of one year of community control followed by two years' probation, which was the result of a court-induced plea. The appellant pleaded guilty to a lewd and lascivious act in the presence of a child under sixteen under section 800.04(3), Florida Statutes (1995), in exchange for a sentence of substantial departure....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2003 WL 1916860
...He also asserted that the state had failed to prove beyond a reasonable doubt that he was over 18 years old. We affirm on the authority of Jesus v. State,
565 So.2d 1361 (Fla. 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....
...The trial court ruled that the defendant's age was not an element of the crime of sexual battery but was a factor to consider as part of the sentence of that crime. 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....
CopyCited 3 times | Published | Supreme Court of Florida | 1992 WL 63130
...On appeal the district court reversed Hernandez' convictions and held, among other things, [*] that he could not be convicted *672 of and sentenced for two counts of lewd act based upon a single incident of improper behavior in front of two children. Bergen, on the other hand, allowed five convictions under subsection 800.04(3), Florida Statutes (1987), when the defendant masturbated in the presence of five children. We disagree with Bergen. Section 800.04, Florida Statutes (1987), 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....
...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. As observed in Lifka v. State,
530 So.2d 371, 373 n. 1 (Fla. 1st DCA 1988): One reason for charging assault under section
800.04(1) rather [than] a lewd act under section
800.04(3) may be that a charge of lewd assault focuses on the person assaulted so that a separate charge would lie as to each victim on both occasions, supporting a total of four felony charges; whereas a charge of committing a lewd act in th...
...esence of one or more children, thus limiting the number of offenses that could be charged to one count for each separate incident. The size of the audience or the number of witnesses should not determine the number of allowable convictions under subsection 800.04(3); rather, the number of distinct lewd acts should be determinative....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1988 WL 100559
...2d DCA 1987) and, finally, certify the same question of great public importance we certified in Young. Rehearing granted, sentence affirmed, question certified. SHARP, C.J., concurs. COWART, J., dissents with opinion. COWART, Judge, dissenting. While on probation after pleading no contest to lewd assault upon his step child (§ 800.04, Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...Public Defender, Bradenton, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee. LILES, Acting Chief Judge. Appellant Ralph M. Wilson was charged and convicted by jury of violation of Florida Statute § 800.04, F.S.A....
...The jury, however, believed the story as told by the child and since it rather convincingly supports the verdict of the jury, it will not be disturbed by an appellate court. We are, however, concerned with the sentencing. Florida Statute § 801.041, F.S.A., provides that one convicted under Florida Statute § 800.04, F.S.A., is punishable pursuant to Chapter 801 of the Florida Statutes and, although this was intended in this case, the provisions of Chapter 801 have not been sufficiently complied with....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2002 WL 731699
...of sexual violence if not confined in a secure facility for long-term control, care, and treatment. A "sexually violent offense" is defined to include a lewd, lascivious, or indecent assault or act upon or in the presence of a child in violation of section 800.04....
...[The victim] stated that on the Sunday following this incident, Mr. Harris "said he'd hurt me if I told anyone." Appellant pled nolo contendere and was adjudicated guilty of one count of an attempted sexual act with a child under 16 years old in violation of section 800.04(3)....
...Appellant threatened to whip her if she told anyone of these incidents. Appellant was charged with one count of sexual battery on a child under 12, and with one count of lewd, lascivious, or indecent assault on a child under 16 years of age in violation of section 800.04(1)....
...ms of his prior plea agreement. The court denied the petition without prejudice to Harris's right to raise the issue in an appeal from the final commitment order, which has now been entered. [2] This offense is a second-degree felony, a violation of section 800.04(1), Florida Statutes (1995)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2004 WL 2409350
...The facts surrounding the charges are not relevant to the issues presented by this appeal. Mr. Miller and the State entered into a plea agreement, the exact terms of which are a little murky, in which Mr. Miller agreed to plead nolo contendere *77 to the charge of lewd or lascivious battery, a violation of section 800.04(4)(a), Florida Statutes (2002), and the State agreed to nol prosse the sexual battery charge....
...tion, and appears to have argued that the plea offer did not compel the imposition of such conditions. The State responded that because the requirements of section
948.03(5)(a) are mandatory when a defendant is placed on probation for a violation of section
800.04, a probationary placement that did not specifically include these requirements would be "an incomplete sentence." The State urged further that the court did not have the discretion to waive the requirements of the statute....
...ial conditions imposed." There then follows a series of conditions of probation to be applied particularly to persons who commit any of the listed crimes. One of the crimes listed for which the sex offender conditions of probation must be imposed is section 800.04, the specific crime to which Mr....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2006 WL 3018124
...Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee. KLEIN, J. As a result of having sexual activity with a victim under the age of sixteen, appellant was convicted of violating section 800.04(4), Florida Statutes (2003) (lewd and lascivious battery), and section 800.04(5)(c)(2) (lewd and lascivious molestation)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1996 WL 612776
...Butterworth, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee. THOMPSON, Judge. John Thomas Farrell appeals his conviction for lewd and lascivious assault upon a child under 16 years of age, a violation of section 800.04(4), Florida Statutes (1991)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2002 WL 31306664
...Lionardo Garcia, pro se. Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee. ALTENBERND, Judge. Lionardo Garcia pleaded guilty to committing a lewd and lascivious act pursuant to section 800.04(2), Florida Statutes (1999)....
...A hearing was held on October 18, 2001, in which Mr. Garcia was incorrectly designated as a sexual predator. Mr. Garcia appeals the order designating him as a sexual predator. Under section
775.21(4)(c)(1)(c), Florida Statutes (Supp.1998), where the violation of section
800.04(02) is a second-degree felony, in order for the sexual predator designation to apply, the defendant must have a previous conviction with or without an adjudication of certain enumerated offenses....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 28 Fla. L. Weekly Fed. D 2388
...Wheeler, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee. POLSTON, J. In this direct criminal appeal, appellant Michael Womack seeks reversal of his convictions for lewd or lascivious offenses committed upon or in the presence of a child in violation of section 800.04, Florida Statutes....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 15600, 2010 WL 3984780
...Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant. Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee. Before COPE, WELLS and SALTER, JJ. COPE, J. Ronald Barnett appeals his conviction for lewd and lascivious molestation in violation of subsection 800.04(5)(a), (b), Florida Statutes (2003)....
...[1] We affirm. *964 Defendant-appellant Barnett first argues that the trial court erred by refusing to give a jury instruction on simple battery as a lesser included offense. Battery can be a permissive lesser included offense to a charge under subsection 800.04(5)....
...The information charged that the defendant "did unlawfully and intentionally touch the breasts, genitals, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks of K.J. (A MINOR), a person less than 12 years of age in a lewd and lascivious manner, in violation of 800.04(5)(b), Fla....
...touching, is broad enough to include simple battery as a lesser offense. The Supreme Court of Florida has, however, held otherwise. In Khianthalat v. State,
974 So.2d 359 (Fla.2008), the defendant was charged with lewd or lascivious battery under subsection
800.04(4), Florida Statutes....
...The Khianthalat information did not contain language alleging that the touching was "against the will of the other person." Id. According to the Court, in such a circumstance the defendant is "not entitled to an instruction on simple battery as a permissive lesser included offense of lewd or lascivious battery under section 800.04." Id....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2513016
...We reverse the trial court's order designating Hickey a sexual predator because Hickey does not meet any of the criteria for the sexual predator designation delineated in section
775.21(4). The State concedes the error. Hickey was convicted of lewd or lascivious molestation at the second-degree-felony level pursuant to section
800.04(5)(c)(2), Florida Statutes (2002). A person convicted under section
800.04 must meet either of two criteria to be designated a sexual predator under section
775.21(4). The first criterion is that the offense must be a first-degree felony violation, or attempt thereof, of section
800.04. §
775.21(4)(a)(1)(a). Hickey does not satisfy this criterion because his offense was a second-degree felony. Alternatively, the offense must be any felony violation, or attempt thereof, of section
800.04 and the offender must previously have been convicted of or pleaded to a violation of a crime specified in section
775.21(4)(a)(1)(b)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2013 WL 5575234, 2013 Fla. App. LEXIS 16200
...REVERSED AND REMANDED. GRIFFIN and LAWSON, JJ., concur. . §§
394.910-932, Fla. Stat. (1999). . Florida law establishes that consent is not a defense to lewd or lascivious offenses committed upon or in the presence of persons less than sixteen years of age. See §
800.04(2), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
under the age of fourteen years, in violation of § 800.4, Fla. Stat., F.S.A. The only point preserved for
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1993 WL 462764
...he event that the appellant is once again convicted of both offenses. Appellant was charged by information with committing a sexual battery on a child under the age of 12 and a lewd and lascivious act upon the child by perpetrating a sexual battery. Section 800.04(3), Florida Statutes (Supp....
...the crime of sexual battery, as proscribed by Section
794.011, Florida Statutes, is guilty of a felony of the second degree. In State v. Hightower,
509 So.2d 1078, 1079 (Fla. 1987), the Florida Supreme Court indicated that the crimes provided under section
800.04(2) [1] and section
794.011(2) relating to sexual battery upon a child under 12, are mutually exclusive....
...Nevertheless, as previously stated, the appellant was specifically charged with committing a lascivious act "by committing a sexual battery upon" the victim (emphasis added). Moreover, the trial court, in defining a lascivious act upon a child under the age of 16, as provided in section 800.04(1), instructed the jury that this subsection required a showing that the defendant "handled or fondled the victim in a lewd or lascivious or indecent manner by touching her vaginal area." (Emphasis added.) Consequently, based upon the...
...e relating to the same incident, appellant could not be convicted of both committing a lewd and lascivious act and sexual battery. AFFIRMED in part, REVERSED in part, and REMANDED for new trial. JOANOS and WOLF, JJ., concur. NOTES [1] Now renumbered section 800.04(3).
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2016 WL 2595981, 2016 Fla. App. LEXIS 6978
...for a new
trial thereon. See Gill v. State,
586 So. 2d 471 (Fla. 4th DCA 1991).
The defendant also argues that the trial court committed reversible error by
imposing sentence on count 6. On count 6, the defendant was convicted of violating
section
800.04(5)(b) of the Florida Statutes (2003)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1994 WL 169438
...The issue of whether minors have a right to consent to have sexual intercourse under the privacy amendment has not been addressed by the courts of this state in the context of section
794.05. However, the Fifth District addressed this issue in Jones v. State,
619 So.2d 418 (Fla. 5th DCA 1993), with regard to section
800.04, Florida Statutes (1991). The Jones court held that section
800.04, which prohibits, inter alia, sexual intercourse with persons under sixteen, was constitutional....
...es (1991), unconstitutional as it pertains to a minor's consensual sexual activity? FRANK, C.J., and FULMER, J., concur. NOTES [1] Whether the constitutional right of privacy of minors announced in In re T.W. renders unconstitutional that portion of section 800.04, which provides that consent is not a defense to a prosecution for sexual activity with a minor under sixteen?
CopyCited 2 times | Published | Florida 4th District Court of Appeal
...Bellus and Grace Gonzalez, Asst. Attys. Gen., West Palm Beach, for appellee. PER CURIAM. After a bench trial, the defendant was convicted of knowingly committing a lewd or lascivious act in the presence of a child under the age of fourteen years in violation of Section 800.04, Florida Statutes (1981)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2005 WL 1262325
...was in secure detention until his "commitment to a high risk residential program (level eight)," C.T. v. State,
816 So.2d 757, 758 (Fla. 4th DCA 2002), on September 1, 2004. Seventeen years old, he was adjudicated delinquent for what would have been a second-degree felony (lewd or lascivious battery in violation of section
800.04(4), Fla....
...(2003) (authorizing as punishment for "a misdemeanor of the first degree, . . . a definite term of imprisonment not exceeding 1 year"); §
784.03(1), Fla. Stat. (2003) (proscribing simple battery as a misdemeanor of the first degree). And it is even possible that an adjudication of delinquency under section
800.04(4) (lewd or lascivious battery) might be reduced to an adjudication of delinquency under section
784.03(1) (simple battery) on appeal....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...presence) but consistent with an interpretation of "exposes" that involves actions
intended to be observed by the victim. Id.
The State's interpretation of section
825.1025(4) is further undermined by
a reading of that statute in pari materia with section
800.04, Florida Statutes (2013).
Courts are required "to construe related statutes together so that they illuminate each
other and are harmonized." McGhee v....
...2012) (noting that when
statutes relate to the same subject matter, the court must read those statutes together).
These almost identical statutes relate to the same subject matter—the protection of
vulnerable populations from lewd or lascivious conduct.
Section 800.04 protects minors and contains a lewd or lascivious
exhibition provision nearly identical to the one pertaining to disabled and elderly victims.
§ 800.04(7)....
...It also contains a similar provision relating to lewd or lascivious
molestation, with one significant exception: it criminalizes forcing or enticing a minor to
touch the perpetrator in addition to the intentional touching of a minor by the perpetrator.
Compare § 800.04(5)(a) ("A person who intentionally touches in a lewd or lascivious
manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of
a person less than 16 years of age, or forces or entices a person under 16 years...
...an elderly person or disabled person when the person knows or reasonably should
know that the elderly person or disabled person either lacks the capacity to consent or
fails to give consent."). See also Sanders v. State,
101 So. 3d 373, 375 (Fla. 1st DCA
2012) (stating that section
800.04(5)(a) is violated either "1) by touching the victim in the
proscribed manner, or 2) by forcing or enticing the victim to touch the person in the
proscribed manner").
The legislature declined to include the same proscription in the elderly and
disabled statute as it did in the minor statute....
...exposed them within the meaning of the statute unless his genitals are visible.
Although the evidence of Mr. Mesen's conduct might reasonably support a
theory that Mr. Mesen "force[d] or entice[d]" the victim to touch his genitals "or the
clothing covering them" under section 800.04(5)(a), that conduct is not proscribed by
the statute pertaining to the type of victim in this case....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1996 WL 220559
...Having reviewed the entire record, we hold that the effect of the expert witness's testimony, coupled with the improper admission of the mother's testimony, compels reversal. State v. Townsend,
635 So.2d 949, 949-950 (Fla.1994). REVERSED and REMANDED for new trial. PETERSON, C.J., and GOSHORN, J., concur. NOTES [1] §
800.04(3), Fla.Stat....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2008 WL 1914261
...s than eighteen, between September 2, 1990, and June 30, 1992. He also entered a similar plea to the second-degree felony offense of *550 lewd, lascivious, or indecent act upon or in the presence of a child under sixteen years of age in violation of section 800.04, Florida Statutes (Supp.1990-1991), for acts committed upon W.K....
...s court to narrowly construe this special statute of limitations. NOTES [1] LaMorte also had been charged in case 05-CF-10351 with lewd, lascivious, or indecent act upon or in the presence of D.P., a child under fourteen years of age in violation of section 800.04, Florida Statutes (1979-1983)....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1999 WL 312288
...immediate objection, and was not reported to authorities she simply deemed it not a crime. Juror Masi's subjective understanding that her unfortunate childhood experience was not a crime does nothing to obviate the objective reality that it was. See § 800.04, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...Facts
In 2014, Appellant was charged by information with (Count
One) lewd or lascivious battery (victim over 12 but under 16 years
of age), and with (Count Two) sexual battery (slight force), in
violation of sections
800.04(4) and
794.011(5), Florida Statutes.
Before trial, the State filed a motion in limine, in which the State
anticipated that Appellant would attempt to introduce evidence of
the victim’s prior sexual relationships “or make some reference
th...
...Code scoresheet, the
State assessed Appellant 80 points for “Sex Penetration” for both
counts, which increased Appellant’s lowest permissible sentence to
182.5 months. However, the information for Count One alleged
that Appellant had violated section 800.04(4) Florida Statues by
inserting his penis into the victim’s vagina or mouth or by “union”
of his tongue with the victim’s “vaginal area.” The jury
instructions for both counts stated that the State only needed to...
...1st DCA 2019).
The statute reads, in relevant part:
(2) Specific instances of prior consensual sexual
activity between the victim and any person other than the
offender may not be admitted into evidence in a
prosecution under s.
787.06, s.
794.011, or s.
800.04.
However, such evidence may be admitted if it is first
established to the court in a proceeding in camera that
such evidence may prove that the defendant was not the
source of the semen, pregnancy, injury, or disease; or,...
...conduct or evidence presented for the purpose of showing
that manner of dress of the victim at the time of the
offense incited the sexual battery may not be admitted
into evidence in a prosecution under s.
787.06, s.
794.011,
or s.
800.04.
§
794.022(2-3), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 6430, 2015 WL 1942890
...conscience, esp. for a crime one has committed.” Black’s Law Dictionary 1487 (10th ed. 2014). To prove the crime charged, the State was required to prove that Lindsay intentionally touched the genitals of the victim in a lewd or lascivious way. § 800.04(5), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...Labalme, Asst. Atty. Gen., Tampa, for appellee. McNULTY, Judge. Appellant was charged with committing, but was convicted of attempting to commit, a lewd, lascivious or indecent assault or act upon a child under the age of fourteen years as proscribed by § 800.04, F.S.A....
...Accordingly, while we have concluded from a careful review of the record that the evidence is fully sufficient to support the verdict found and the judgment entered, nevertheless for two reasons the sentence must be set aside. First, we reiterate that the charge was brought under § 800.04, supra....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...James Marion Moorman, Public Defender, Bartow, and Brad Permar Asst. Public Defender, Clearwater, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. We affirm the appellant's conviction and reject his contention that section
800.04, Florida Statutes (1985), is unconstitutionally vague when applied to children under sixteen years of age. Accordingly, as in L.L.N. v. State,
504 So.2d 6, on rehearing *517 (Fla. 2d DCA 1987), we declare section
800.04, Florida Statutes (1985), to be valid....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2006 WL 568694
...atened to use a deadly weapon or used actual physical force likely to cause serious personal injury. §
794.011(3), Fla. Stat. (2002). During the charge conference at Williams's trial, the State sought an instruction that lewd or lascivious battery, §
800.04(4), Fla....
...h 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 . . . without committing the crime of sexual battery, commits a felony of the second degree. . . ." See, e.g., §
800.04(3), Fla. Stat. (1997) (emphasis supplied). As the Hightower court explained, this "unique language" in section
800.04 made it clear that lewd and lascivious crimes and the crime of sexual battery were mutually exclusive. Hightower,
509 So.2d at 1079; see also Welsh,
850 So.2d at 470. In 1999, the Legislature amended section
800.04. It no longer contains the "unique language" that guided the Hightower court's reasoning. The 2002 version of section
800.04(4), which applies to this case, states: (4) A person who: (a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or (b) Encourages, forces, or entices any person less than 16 years of age t...
...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....
...But it emphasized that its holding that lewd and lascivious crimes could not be permissive lesser included offenses of sexual battery crimes pertained "only to the 1997 versions of the applicable statutes." Id. at 470-71. We now have squarely before us the issue not presented in Welsh: whether under the amended version of section 800.04, lewd or lascivious battery may be a permissive lesser included offense to a sexual battery charge. [1] We believe that Hightower and Welsh support a conclusion that, in the proper circumstance, it can be. The Hightower court observed that, absent the "unique language" present in the pre-1999 versions of section 800.04, "a person having forcible sexual intercourse with a person under sixteen would be guilty of both" sexual battery and lewd and lascivious conduct....
...The First District in Welsh held: 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. . . . In defining the offense of a lewd and lascivious act, section
800.04, Florida Statutes (1997), has, by specifically excluding sexual battery as a means of perpetrating such act, removed sexual battery as an element involved in the commission of a lewd and lascivious act. . . .
850 So.2d at 470 (quoting Welsh,
816 So.2d at 176). The Florida Supreme Court approved the First District's reasoning. Welsh,
850 So.2d at 470. Now, however, section
800.04 does not exclude sexual battery as a means of perpetrating a lewd or lascivious 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....
...battery. See Welsh,
850 So.2d at 470; Brown,
206 So.2d at 383. Indeed, it did; the information charged that Williams put his penis inside, or in union with, the vagina of a person twelve years or age or older but less than sixteen years of age. See §
800.04(4), Fla....
...Thus, the evidence, as well as the allegations of the information, supported the instruction on the permissive lesser included offense of lewd or lascivious battery. Therefore, we hold that the trial court did not err in giving the instruction, and we affirm. [3] Issues concerning the 1999 amendments to section
800.04 seem to be arising with some frequency. See, e.g., Robinson v. State,
919 So.2d 623 (Fla. 2d DCA 2006) *422 (holding that defendant could not be convicted of both sexual battery and lewd or lascivious battery based on the same conduct; the State argued that the 1999 amendments to section
800.04 permitted that result); Gresham v. State,
908 So.2d 1114, 1115 (Fla. 1st DCA 2005) (discussing Welsh and the 1999 amendments to section
800.04 in the context of a requested jury instruction, but not reaching the issue because the defendant failed to preserve it). 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....
...he 2000 version of the Florida Statutes. If that is the case, the citation to Welsh does not support the proposition, because Welsh applied only to the 1997 version of the statutes. If Thornton involved crimes committed before the 1999 amendments to section 800.04, its reasoning does not affect this case....
CopyCited 2 times | Published | Supreme Court of Florida | 2014 WL 2516154, 2014 Fla. LEXIS 1812
...e of twelve.
1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
I. BACKGROUND
Kemar Rochester was convicted of lewd or lascivious molestation of a child
under the age of twelve in violation of section 800.04(5)(b), Florida Statutes
(2008)....
...circumstances are present.2 The trial court found that it had no discretion to
impose a downward departure sentence, even though it was inclined to do so,
because section
775.082(3)(a)4. imposed a mandatory minimum sentence of
twenty-five years’ imprisonment for violations of section
800.04(5)(b)....
...mandatory minimum sentence in this section. Id. at 411.
II. ANALYSIS
Lewd or lascivious molestation of a child under twelve by an adult is “a life
felony, punishable as provided in s.
775.082(3)(a)4.” §
800.04(5)(b), Fla....
...esignated felony
may be punished as follows:
(a) . . . .
....
4.a. Except as provided in sub-subparagraph b., for a life
felony committed on or after September 1, 2005, which is a violation
of s.
800.04(5)(b), by:
(I) A term of imprisonment for life; or
(II) A split sentence that is a term of not less than 25 years’
imprisonment and not exceeding life imprisonment, followed by
probation or community control for the remainder of the person’s
natural life, as provided in s.
948.012(4).
b. For a life felony committed on or after July 1, 2008, which is
a person’s second or subsequent violation of s.
800.04(5)(b), by a term
of imprisonment for life.
The certified conflict issue in this case is whether the twenty-five year
sentence set forth in subsection (3)(a)4.a(II) above is a mandatory minimum
sentence.3 This involves an issue of statutory interpretation and is subject to de
3....
... in section
322.28(2)(a)(2), Florida Statutes (1999), established a mandatory minimum period
for license revocation). Therefore, while the statute does give the trial court some
discretion in which sentence it chooses to impose for violations of section
800.04(5)(b), under the plain meaning of the statutory language the trial court does
not have the discretion to impose a sentence below the twenty-five year minimum
set forth in section
775.082(3)(a)4.a(II).
III....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2008 WL 2572646
...As far as the record reveals, Jaquinta knowingly and voluntarily consented to the relationship with Denea. See §
794.011(1)(a), Fla. Stat. (2007). Jaquinta's age did not preclude her legally consenting to a sexual relationship with an 18-year-old. Neither sections
794.05 nor
800.04, Florida Statutes (2007), apply in the present case....
...r children, on the other. See §
794.05(1), Fla. Stat. (2007) ("A person 24 years of age or older [not merely 18, like Denea] who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree. . . ."). See also §
800.04, Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 8146, 2011 WL 2161938
...iolation of MCL 750.520g(l). 1 Sexual predator designation is governed by section
775.21(4)(a)l.b. and requires a qualifying current felony conviction, which the parties concede was met when Fike pled to lewd or lascivious conduct — a violation of section
800.04, Florida Statutes....
...The meaning of “violation of a similar law of another jurisdiction” need not be fully defined or explored because Fike’s Michigan conviction does not qualify him for sexual predator designation. The assertion that the lewd or lascivious offenses listed in section 800.04 are similar is unpersuasive because these offenses require proof the victim was younger than sixteen years old....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2000 WL 799367
...f). Accordingly, the judgment of conviction and sentence for sexual battery of an incapacitated person are reversed. JUDGMENT and SENTENCE REVERSED. THOMPSON, C.J., HARRIS and PETERSON, JJ., concur. NOTES [1] §
794.011(4)(f), Fla. Stat. (1995). [2] §
800.04(4), Fla. Stat. (1995). [3] §
800.04(1), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2008 Fla. App. LEXIS 8982
...ncy virus (HIV) testing pursuant to section
960.003, Florida Statutes (2007), and remand with directions that the trial court grant the motion. Appellant pled no contest to lewd or lascivious battery on a person less than 16 years of age pursuant to section
800.04(4)(a), Florida Statutes (2007)....
...tim’s legal guardian, or of the parent or legal guardian, the court shall order such person to undergo HIV testing within 48 hours of the court order.... Among the sexual offenses enumerated in section
775.0877(1), Florida Statutes (2007), is: (c) Section
800.04(1), (2), and (3), relating to lewd, lascivious, or indecent assault or act upon any person less than 16 years of age. However, section
775.0877(l)(c) refers to the pre-1999 version of section
800.04. Effective October 1, 1999, section
800.04 was substantially rewritten so that subsections (1) through (3) no longer refer to the actual offenses which have been transferred to subsections (4) through (6). Ch. 99-201, §§ 6, 17, at 1187-88, 1211, Laws of Fla. Although recognizing that the legislature’s failure to amend section
775.0877(l)(c) to reflect the 1999 amendments to section
800.04 appeared to be an oversight, the trial court denied the state’s motion for HIV testing because appellant’s delinquency adjudication for lewd or lascivious battery under section
800.04(4)(a) was not a sexual offense enumerated under section
775.0877(l)(c)....
...sult in an absurd or ridiculous conclusion. Maddox v. State,
923 So.2d 442, 446 (Fla.2006); State v. Atkinson,
831 So.2d 172, 174 (Fla.2002). In this case, the legislature’s failure to amend section
775.0877(1)(c) to reflect the 1999 amendments to section
800.04 was a clerical oversight. A literal interpretation of section
775.0877(1)(c) based on the outdated reference to section
800.04 would render section
775.0877(1)(c) meaningless because no one charged with committing a sexual offense under section
800.04 after the 1999 amendments would be subject to HIV testing. Such a result would be absurd and contrary to the legislature’s clear intent that those charged with sexual offenses under section
800.04 be subject to HIV testing. Under these circumstances, the trial court should have construed section
775.0877(1)(c) as referring to the amended version of section
800.04....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2008 WL 2403723
...ncy virus (HIV) testing pursuant to section
960.003, Florida Statutes (2007), and remand with directions that the trial court grant the motion. Appellant pled no contest to lewd or lascivious battery on a person less than 16 years of age pursuant to section
800.04(4)(a), Florida Statutes (2007)....
...ictim's legal guardian, or of the parent or legal guardian, the court shall order such person to undergo HIV testing within 48 hours of the court order.... Among the sexual offenses enumerated in section
775.0877(1), Florida Statutes (2007), is: (c) Section
800.04(1), (2), and (3), relating to lewd, lascivious, or indecent assault or act upon any person less than 16 years of age. However, section
775.0877(1)(c) refers to the pre-1999 version of section
800.04. Effective October 1, 1999, section
800.04 was substantially rewritten so that subsections (1) through (3) no longer refer to the actual offenses which have been transferred to subsections (4) through (6). Ch. 99-201, §§ 6, 17, at 1187-88, 1211, Laws of Fla. Although recognizing that the legislature's failure to amend section
775.0877(1)(c) to reflect the 1999 amendments to section
800.04 appeared to be an oversight, the trial court denied the state's motion for HIV testing because appellant's delinquency adjudication for lewd or lascivious battery under section
800.04(4)(a) was not a sexual offense enumerated under section
775.0877(1)(c)....
...result in an absurd or ridiculous conclusion. Maddox v. State,
923 So.2d 442, 446 (Fla.2006); State v. Atkinson,
831 So.2d 172, 174 (Fla.2002). In this case, the legislature's failure to amend section
775.0877(1)(c) to reflect the 1999 amendments to section
800.04 was a clerical oversight. A literal interpretation of section
775.0877(1)(c) based on the outdated reference to section
800.04 would render section
775.0877(1)(c) meaningless because no one charged with committing a sexual offense under section
800.04 after the 1999 amendments would be subject to HIV testing. Such a result would be absurd and contrary to the legislature's clear intent that those charged with sexual offenses under section
800.04 be subject to HIV testing. Under these circumstances, the trial court should have construed section
775.0877(1)(c) as referring to the amended version of section
800.04....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...Washington, a person over the age of eighteen, was convicted of one count of sexual battery upon a person of the age eleven or younger contrary to Section
794.011, Florida Statutes (1981), and two counts of attempted lewd assault upon persons under the age of fourteen contrary to Section
800.04, Florida Statutes (1981)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2000 WL 905650
...rom Mr. Milanes' sentencing guidelines scoresheet. We agree and therefore remand this matter for resentencing. Luis Milanes entered a plea of nolo contendere to the charge of committing a lewd act by fondling the fifteen-year-old victim's penis. See § 800.04, Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1995 WL 144131
...m to deportation by the United States government, that if questioned by the court under oath at the plea hearing the answers given may be used in any later perjury prosecution, and finally that he understands the terms of the plea agreement. [2] See §
800.04(1), Fla. Stat. (1993). [3] See §§
777.04(1) and
800.04(2), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1755
...atutes, a "capital felony" punishable by life imprisonment with a mandatory 25 year term of incarceration. The information also charged that appellant made a lewd and lascivious assault upon the same victim, by having her masturbate him, contrary to section
800.04, Florida Statutes. Appellant pled nolo contendere to a first degree felony of sexual battery in violation of section
794.011(4)(e) and to the second degree felony of lewd and lascivious assault on a child in violation of section
800.04....
...degree misdemeanor under section
784.03. Assault, a category 2 lesser included offense of sexual battery under section
794.011, is a second degree misdemeanor under section
784.011. See footnote 7 for discussion of "lewd assault upon a child" under section
800.04, Florida Statutes (1984 and 1985) as a lesser included offense of sexual battery under section
794.011. [7] See footnote 6. Arguably, another category 2 lesser included offense under sections
794.011(3)-(5), Florida Statutes (1984 and 1985), would be "lewd assault upon a child" under section
800.04(2), Florida Statutes (1984 and 1985). Before 1984, section
800.04 provided: Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child,...
...union with, the sexual organs of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. The offense of "lewd assault" under the old version of section
800.04 has been held not to constitute a lesser included offense of sexual battery under section
794.011....
...State,
403 So.2d 956 (Fla. 1981), which involved section
794.011(5); Caulder v. State,
500 So.2d 1362 (Fla. 5th DCA 1986), which involved section
794.011(2). The 1984 amendment appears to indicate a legislative intent to include lewd assault under section
800.04(2) in a charge of sexual battery under sections
794.011(3)-(5) when the victim is between the ages of 12 and 16 years....
...ute) upon a child less than 12 years of age, without regard to whether the victim was of previous chaste character or consented, reading the two statutes together indicates a legislative intent to bar inclusion of the second degree felony defined by section
800.04(2) in the capital felony defined by section
794.011(2)....
...sexual battery" (as that term is defined in the statute) upon a child 12 years of age or older, without that person's consent, reading the two statutes together indicates a legislative intent to allow inclusion of the second degree felony defined by section
800.04(2) in any of the felonies defined by sections
794.011(3)-(5), when the victim is under the age of 16 years....
...6, but the circumstances prevent his conviction of the crime of sexual battery under section
794.011 (i.e., the victim consented), the legislature apparently intends that he can be charged with and found guilty of the second degree felony defined by section
800.04(2). Therefore, lewd and lascivious assault under section
800.04(2) would arguably be a category 2 lesser included offense of sexual battery under sections
794.011(3)-(5), when the victim is 12 years or older, but under the age of 16....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1995 WL 421868
...Before HUBBART and GERSTEN and GODERICH, JJ. PER CURIAM. This is an appeal by the defendant Glenn Ogden from judgments of conviction and sentences for (1) capital sexual battery on a child of less than twelve years of age [§
794.011(2), Fla. Stat. (1991)], and (2) lewd and lascivious act [§
800.04(4), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2002 WL 1466546
...However, because our record contains no transcript of the plea hearing, we cannot discern whether the State's factual basis included penetration. We reverse West's sentence and remand for further proceedings on the issue of whether the penetration points were properly scored. SILBERMAN and COVINGTON, JJ., Concur. NOTES [1] § 800.04(3), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 186, 2015 WL 71824
...involving Imbert. The crime that
1 Imbert sets forth the following arguments: (1) the trial court erred by
allowing the trial to proceed without providing Imbert with a Creole interpreter;
(2) the statute governing lewd or lascivious battery—section 800.04(4), Florida
Statutes—is unconstitutionally vague because it does not provide definitions for
the terms “entice” or “encourage;” (3) the trial court improperly considered an
uncharged crime against Imbert at sentencing; and (4...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1997 WL 1679
...for Appellees. PETERSON, Chief Judge. The State of Florida appeals the dismissal of charges of statutory rape against two 15-year-old boys who engaged in "consensual" sex with two 12-year-old girls. The trial court dismissed the charges finding that section 800.04, Florida Statutes (1993) [1] , was unconstitutional as applied to the youths because it violated their right to privacy and equal protection under the law....
...sentence. We do observe, however, that it might be appropriate to impose a harsh sentence depending on the circumstances of the commission of the crime and the criminal history of the juvenile. We now come to the issue of whether the application of section
800.04 to these two 15 year old boys invades their privacy rights when they engage in sex with 12 year old girls. First, it must be recognized that it is appropriate to charge a minor under this statute. In L.L.N. v. State,
504 So.2d 6 (Fla. 2d DCA), rev. denied,
511 So.2d 299 (Fla.1987), the second district upheld the constitutionality of section
800.04 against a vagueness challenge....
...The crux of the state's interest in the minor-to-minor situation is in protecting the minor from the sexual activity itself for reasons of health and quality of life. Id. at 259. The conclusion to be drawn from the supreme court's statements in B.B. and the legislature's statement in section 800.04 is that sexual activity between minors is prohibited whether or not each of the participants believe that they have "consented." There should be little doubt of this in view of the *1369 decision in L.L.N....
...Florida has been content with the penalty applicable to minors under the age of 16 at least since 1987 and neither the consequences of minors having sex nor the potential risk of being declared a felon has been an effective deterrent. Perhaps it is precisely because there is a reluctance to apply section 800.04 to minors and they recognize that reluctance....
...s a felony, the penalty is viewed as an act by the legislature that oversteps its bounds. [2] The potential for harm in engaging in the sex act can be as great as, for example, grand theft. We decline to eliminate by judicial fiat whatever restraint section 800.04 provides in prohibiting sexual activity by minors in furtherance of the state's compelling interest in preventing such conduct and its consequences....
...other criminal activity by a minor. We vacate the dismissal by the trial court and remand for further proceedings. *1370 We do, however, certify the following question as one of great public importance: WHETHER THE POTENTIAL PENALTY FOR VIOLATION OF SECTION 800.04, FLORIDA STATUTES, BY A MINOR UNDER THE AGE OF SIXTEEN FURTHERS A COMPELLING STATE INTEREST THROUGH THE LEAST INTRUSIVE MEANS. REMANDED. COBB and ANTOON, JJ., concur. NOTES [1] 800.04....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2006 WL 147401
...State,
848 So.2d 442, 444 (Fla. 4th DCA 2003). Accordingly, we reverse and remand with directions to strike the conviction and sentence for lewd and lascivious molestation. In its brief in this appeal the State points out that in 1999 the legislature amended section
800.04....
...e. Before 1999, the crime of lewd and lascivious assault occurred when a person "commit[ted] 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." See §
800.04, Fla....
...(1997). Hightower relied on the "unique language" of this statute when it determined that the crimes of sexual battery and lewd and lascivious conduct were mutually exclusive.
509 So.2d at 1079. The State maintains that under the present version of section
800.04 the crimes are not mutually exclusive, and that a perpetrator can be convicted of both sexual battery and lewd and lascivious conduct based on the same sexual act. We disagree. In McConn v. State,
648 So.2d 837 (Fla. 2d DCA 1995), we held that a conviction for sexual activity with a child in custodial authority, § 794.041(2)(b), Fla. Stat. (1991), and a conviction for lewd and lascivious conduct, §
800.04(1), Fla. Stat. (1991), violated double jeopardy because they were based on the same sexual act. The section 794.041 crime was not a defined as a "sexual battery." Thus, the "unique language" of the pre-1999 version of section
800.04 did not necessarily make the crimes mutually exclusive, as contemplated in Hightower....
...But as the McConn court noted, "[f]rom a practical standpoint, however, it is impossible to commit the sexual activity alleged in the information without committing the alleged lewd act in the process." The same reasoning applies here, regardless of the new language in the 2002 version of section 800.04....
...However, we certify that our resolution of this case passes on the following question of great public importance: [3] MAY A DEFENDANT BE CONVICTED OF BOTH SEXUAL BATTERY UNDER SECTION
794.011(5), FLORIDA STATUTES (2002), AND LEWD AND LASCIVIOUS MOLESTATION UNDER SECTION
800.04(5), FLORIDA STATUTES (2002), FOR A SINGLE SEXUAL ACT? We reverse Robinson's conviction under section
800.04(5) and remand with directions to enter a judgment of acquittal on that charge and to strike Robinson's sentence for that crime. STRINGER, J. and THREADGILL, EDWARD F., Senior Judge, Concur. NOTES [1] §
794.011(5), Fla. Stat. (2002) [2] §
800.04(5), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
ORDER RELINQUISHING JURISDICTION LaROSE, Chief Judge. Nicholas J. Camón appeals his judgment and sentence imposed after he pleaded guilty to lewd or lascivious conduct. See § 800.04(6)(a)(l), (6)(b), Fla....
...(Whereupon, the proceedings concluded.) The trial court made no oral or written findings as to Mr. Carrion’s competency. Mr. Carrion’s counsel made no objection at the hearing. Later, Mr. Carrion entered a negotiated plea of guilty to one count of lewd or lascivious conduct, a second-degree felony. See § 800.04(6)(a)(l), (6)(b)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2005 WL 74094
...al. See, e.g., State v. Johnson,
483 So.2d 420, 422 (Fla.1986); Barfield v. State,
871 So.2d 929 (Fla. 5th DCA 2004). AFFIRMED IN PART; REVERSED IN PART; REMANDED. SAWAYA, C.J., and MONACO, J., concur. NOTES [1] §
794.011(5), Fla. Stat. (2001). [2] §
800.04(5)(c)(2), Fla....
CopyCited 2 times | Published | Supreme Court of Florida | 21 Fla. L. Weekly Supp. 14, 1996 Fla. LEXIS 7, 1996 WL 8257
...1st DCA 1994), wherein the district court certified two questions: Whether, for purposes of control release eligibility determinations under section [947.146(4)(c), Florida Statutes (1991)], a child under the age of sixteen can consent to sexual acts that constitute a violation of section 800.04, Florida Statutes [(1991)]? Whether an arresting officer's affidavit may be used to deny control release eligibility, under section [947.146(4)(c), Florida Statutes (1991)], where the information, indictment, bill of particulars and ju...
...V, § 3(b)(4), Fla. Const. We answer the first question in the negative, the second in the affirmative, and approve the result in Gramegna. Gramegna was sentenced to three concurrent ten-year terms of imprisonment after pleading no contest to lewd assault under section 800.04(1), Florida Statutes (1991), for fondling the breasts and vagina of a fourteen-year-old and placing her hand on his genitals....
...Gramegna filed a petition for writ of mandamus in circuit court protesting the Commission's ruling and the court denied relief. The district court affirmed, certifying the above questions. I. CONSENT OF A MINOR The State contends that because the consent of a minor is not a defense to the crimes enumerated in section 800.04, it follows that violations of this section are nonconsensual as a matter of law for control release purposes....
...turbating in public; exposing the sexual organs in a perverted manner; or nonconsensual handling or fondling of the sexual organs of another person[.] §
947.146(4), Fla. Stat. (1991) (emphasis added). The statute under which Gramegna was convicted, section
800.04, proscribes the commission of lewd acts upon minors and expressly states that consent is not a defense:
800.04 Lewd, lascivious, or indecent assault or act upon or in presence of child....
...lascivious, or indecent manner; .... without committing the crime of sexual battery, commits a felony of the second degree... . Neither the victim's lack of *137 chastity nor the victim's consent is a defense to the crime proscribed by this section. § 800.04, Fla. Stat. (1991) (emphasis added). The legislature thus has determined that a child is incapable of understanding the full consequences of the lewd acts enumerated in section 800.04 and cannot give meaningful or legally significant consent....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2003 WL 69535
...feel or hold the exposed penis of Joseph Wise, which act as stated was lewd and lascivious in the presence of the said child ... but without committing the crime of sexual battery.... The information then stated that Wise's actions were contrary to section 800.04(2), Florida Statutes (1997). Section 800.04 provides: A person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; (2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,...
...forced or enticed [A.P.] to commit an act in which the penis of Joseph Wise penetrated or had union with the mouth of [A.P.], or Joseph Wise knowingly committed a lewd or lascivious act in the presence of [A.P.]. Although the charging document cited section 800.04(2), and arguably included the language of subsection (4), by including the instruction on penetration or union with the mouth, the trial court instructed the jury on subsection (3)....
...did not specify the theory by which it found Wise guilty, it was reversible error to include the instruction. See O'Bryan v. State,
692 So.2d 290 (Fla. 1st DCA 1997). In O'Bryan, the defendant was alternately charged under subsections (1) and (4) of section
800.04, but the trial court instructed the jury on subsections (1) and (2)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
Concur. Lewd or lascivious battery under section
800.04(4)(a), Florida Statutes (2013), criminalizes
CopyCited 2 times | Published | Supreme Court of Florida | 23 Fla. L. Weekly Supp. 67, 1998 Fla. LEXIS 85
WHETHER THE POTENTIAL PENALTY FOR VIOLATION OF SECTION
800.04, FLORIDA STATUTES, BY A MINOR UNDER THE AGE
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2008 WL 482298
...Following the conclusion of Appellant's sentencing hearing, Appellant's probation officer suggested to the trial court that it may have erred in failing to require electronic monitoring as a condition of Appellant's probation because Appellant had a previous conviction for lewd or lascivious exhibition under section 800.04(7)(c), Florida Statutes....
...Under section
948.30(3)(c), any probationer or community controllee whose crime was committed on or after September 1, 2005, must undergo electronic monitoring as a condition of probation or community control supervision if he or she "[h]as previously been convicted of a violation of chapter 794, s.
800.04(4), (5), or (6), s....
...Where a statute enumerates specific terms, it is ordinarily construed as excluding from its operation all those terms not expressly mentioned. Thayer v. State,
335 So.2d 815, 817 (Fla.1976). The crime of lewd or lascivious exhibition, as defined in section
800.04(7), is not listed as a qualifying offense in section
948.30(3)(c)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal
...as been *86 convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: §
787.025; chapter 794; § 796.03; §
800.04; §
825.1025; §
827.071; §
847.0133;
847.0135; §
847.0145; or any similar offense committed in this state which has been redesigned from a former statute number to one of those listed in this subparagraph....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2006 WL 304578
...Defense counsel repeatedly requested the lesser be given but was unable to articulate precisely why the instruction on battery should be given. [1] First degree misdemeanor battery is a category two, permissive lesser included offense of lewd and lascivious battery, the crime proscribed by section
800.04(4)(a) and charged in Count II of the *738 amended information. Sherrer v. State,
898 So.2d 260 (Fla. 1st DCA 2005); Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, §
800.04....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2002 WL 31728458
...State,
727 So.2d 1047, 1048 (Fla. 2d DCA 1999); Evans v. State,
473 So.2d 745 (Fla. 2d DCA 1985). We find that the trial court did not abuse its discretion in admitting the evidence challenged in this appeal. AFFIRMED. HARRIS and ORFINGER, R.B., JJ., concur. NOTES [1] §
800.04, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1996 WL 726847
...Because the statute here, like the statute in Jones, was designed to protect all children, and because Justice Kogan's vote was the swing vote in B.B., dismissal of Counts I and II was not required by B.B. I note that the point upon which I rely was recently recognized in the context of a prosecution under section 800.04, Florida Statutes....
...ed to the extent that at least four members of the Court have joined in an opinion and decision."). See also Greene v. Massey,
384 So.2d 24, 27 (Fla.1980). [2] In Jones, the defendants in two cases consolidated for appeal were convicted of violating section
800.04, Florida Statutes, which prohibits lewd or lascivious assault on a child under 16 and to which neither the victim's lack of chastity nor the victim's consent is a defense....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2012 WL 3192726, 2012 Fla. App. LEXIS 13202
DAMOORGIAN, J. Kemar Rochester appeals his judgment and sentence for lewd or lascivious molestation of a child less than twelve years of age, in violation of section 800.04(5)(b), Florida Statutes (2007). Rochester argues that the trial court erred in concluding that it could not downward depart from the mandatory minimum sentence of twenty-five years in prison followed by a term of probation for life for a violation of section 800.04(5)(b)....
...o consider a downward departure sentence). Turning to the merits of the issue, Rochester argues that the trial court incorrectly assumed that it could not downward depart from the mandatory minimum of twenty-five years. Rochester was convicted under section
800.04(5)(b), which states, “[a]n offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony, punishable as provided in s.
775.082(3)(a)4.” §
800.04(5)(b), Fla. Stat. (2007). Section
775.082(3)(a)4. provides: (3) A person who has been convicted of any other designated felony may be punished as follows: (a)4. For a life felony committed on or after September 1, 2005, which is a violation of s.
800.04(5)(b), by: a....
...on the subject of sen *410 tencing for an aggravated fleeing and eluding charge. Id. (quoting McKendry,
641 So.2d at 47 ). In 2004, the crime for which Rochester was convicted was a first degree felony punishable by up to thirty years in prison. See §
800.04(5)(b), Fla. Stat. (2004); §
775.082(3)(b), Fla. Stat. (2004). Through its enactment of the Jessica Lunsford Act in 2005, the legislature made the following changes to the 2004 versions of sections
800.04(5)(b) and
775.082(3): (1) a violation of section
800.04(5)0») became a life felony; and (2) section
775.082(3) carried a twenty-five year mandatory minimum sentence. Ch. 2005-28, §§ 4-5, at 7-8, Laws of Fla. Similar to McKendry , the fact that the legislature amended sections
800.04(5)(b) and
775.082(3) in 2005 establishes a clear and unambiguous expression of its intent to impose a twenty-five year mandatory minimum sentence....
...ord of mandate in an appropriate context.”); Woodland v. Lindsey,
586 So.2d 1255, 1256 (Fla. 4th DCA 1991) (“The word ‘may’ in this context must be construed as an imperative to the court to exercise its authority.”). We hold that sections
800.04(5)(b) and
775.082(3)(a)4....
...2 See Scriber,
991 So.2d at 970 ; McKendry,
641 So.2d at 46-47 . We recognize that our holding is contrary to Montgomery v. State,
36 So.3d 188 (Fla. 2d DCA 2010). In Montgomery , the defendant appealed his judgment and sentence for lewd or lascivious molestation in *411 violation of section,
800.04(5)(b), Florida Statutes (2008)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 10972, 2009 WL 2407656
...[1] He argues that the trial court erred when it concluded that removing him from the sex offender registry would conflict with federal law and, therefore, is not authorized by Florida law. We affirm. Miller had been charged in a two-count information with violation of section 800.04, Florida Statutes (2003), sexual battery upon a person twelve years of age or older, without consent, after administering a narcotic, anesthetic, or other intoxicating substance, and lewd or lascivious battery....
...uestion was not consensual. The trial court then found that the totality of the circumstances suggest the sex act at issue was "something other than consensual sexual contact," and thus the motion had to be denied. Upon conviction for a violation of section
800.04, Florida Statutes, as well as other enumerated sections, a defendant is automatically designated a sexual offender and *780 subject to registration requirements contained in section
943.0435, Florida Statutes....
...Specifically, section
943.04354, provides: (1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person: (a) Was or will be convicted or adjudicated delinquent of a violation of s.
794.011, s.
800.04, or s.
847.0135(5) or the person committed a violation of s.
794.011, s.
800.04, or s.
847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s.
794.011, s.
800.04, or s....
...14 years of age or older but not more than 17 years of age at the time the person committed this violation. . . . . (3)(a) This subsection applies to a person who: 1. Is not a person described in subsection (2) because the violation of s.
794.011 or s.
800.04 was not committed on or after July 1, 2007; 2. Is subject to registration as a sexual offender or sexual predator for a violation of s.
794.011 or s.
800.04; and 3. Meets the criteria in subsection (1). (b) A person may petition the court in which the sentence or disposition for the violation of s.
794.011 or s.
800.04 occurred for removal of the requirement to register as a sexual offender or sexual predator....
...nse to which Miller entered his plea. Miller argues that because the offense of which he was convicted does not contain an element of non-consent on the part of the victim, the trial court is precluded from considering that issue. We disagree. Under Section 800.04, Florida Statutes, lack of consent is not an element that must be proved because consent is irrelevant to conviction of this particular sex offense, but the federal statute makes clear that only persons who have engaged in consensual conduct can be exempt from registering as sexual offenders....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1998 WL 518503
...Johnson pleaded guilty was a first-degree felony. Mr. Johnson was originally charged with one count of lewd and lascivious act upon a child and four counts of capital sexual battery. On October 31, 1995, he pleaded guilty to one count of lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (1993), and two counts of attempted sexual battery on children under twelve years of age....
...d are released into the community despite the threat that they pose to children. Affirmed. PARKER, C.J., and GREEN, J., concur. NOTES [1] Because Mr. Johnson has no prior record, he cannot be classified as a sexual predator based on his violation of section 800.04....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...Public Defender, Bradenton, for appellant. Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee. HOBSON, Acting Chief Judge. Appellant Clingan was charged and convicted by a jury of committing a lewd and lascivious act in violation of § 800.04 F.S....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1995 WL 490561
...is case. The trial judge's instruction was supported by the evidence and by the law. Accordingly, we affirm Sheppard's convictions. AFFIRMED. DAUKSCH and COBB, JJ., concur. NOTES [1] §
794.011(2), Fla. Stat. (1989). The victim was 11 years old. [2] §
800.04(1), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2001 WL 929872
...Appellant. James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for Appellee. GRIFFIN, J. In 1999, the defendant below, Walter Thurman ["Thurman"], was charged with performing a lewd act upon a child pursuant to section 800.04(1), Florida Statutes (1999)....
...It was error to dismiss the probation violation proceeding. REVERSED and REMANDED. SAWAYA and PALMER, JJ., concur. NOTES [1] According to this section, special conditions must be imposed for probationers who are placed under supervision for violation of chapter 794, §
800.04, §
827.071, or §
847.0145.
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 2013 WL 4106367, 2013 U.S. App. LEXIS 16895
...Spencer’s career
offender status. 37 On the third degree felony child abuse charge with which we are
concerned, there was no charging document. The only charging document was
with respect to a lewd or lascivious battery charge under Fla. Stat. § 800.04(4), 38 a
more serious second degree felony to which Spencer did not plead guilty. It
accused him of engaging in sexual activity with a minor between 12 and 16 “by
placing his penis in or upon the vagina of” the minor. That charge was a strict
liability crime. See Fla. Stat. § 800.04(2) & (3) (2000) (victim’s consent or
36
Spencer attached the Florida information, judgment and conviction, plea agreement,
and change of plea hearing transcript as “appendices” to his brief, but we do not believe that
alone makes them properly part of the record....
... Case: 10-10676 Date Filed: 08/15/2013 Page: 30 of 45
ignorance of age or misrepresentation of age no defense); see also United States v.
Harris,
608 F.3d 1222, 1232 (11th Cir. 2010) (“It is true that . . . Fla. Stat.
§
800.04(3) ‘impose[s] strict liability, criminalizing conduct in respect to which the
offender need not have had any criminal intent at all.’” (quoting Begay,
553 U.S. at
145,
128 S. Ct. at 1586-87)); State v. Snyder,
807 So. 2d 117, 120 (Fla. Dist. Ct.
App. 2002) (“‘lewd and lascivious’ conduct in violation of Section
800.04 carries
with it the same concept of ‘strict liability’ that has traditionally characterized
‘statutory rape’”)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1998 WL 472559
...s that he had not abused her. As in Young, we find this to be harmful error; one that severely prejudiced Tullis and denied him a fair trial. REVERSED AND REMANDED. PETERSON and THOMPSON, JJ., concur. NOTES [1] § 794.01(8)(b), Fla. Stat. (1993) [2] § 800.04(1), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2006 WL 2285789
...01(30)(b), Fla. Stat. (2005). Under Florida law, "lewd or lascivious molestation" occurs when a person "intentionally touches in a lewd or lascivious manner the breasts, . . . or the clothing covering them, of a person less than 16 years of age...." § 800.04(5)(a), Fla. Stat. (2005). "Lewd or lascivious conduct" occurs when a person "[i]ntentionally touches a person under 16 years of age in a lewd or lascivious manner." § 800.04(6)(a)1., Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2001 WL 904212
...FIFTEEN YEARS OF AGE, did intentionally commit a sexual act that did not involve physical or sexual contact with [I.R.], a child FIVE YEARS OF AGE, by PLACING HIS PENIS IN OR IN UNION WITH [K.T.'S] VAGINA IN THE PRESENCE OF [I.T.] (sic), contrary to Section 800.04(7)(a), Florida Statutes....
...charge alleged in count V of the information, we reverse Rallo's conviction of count V.
726 So.2d at 840. Similarly, in the instant case, D.R. was charged with "a sexual act" by "placing his penis in or in union with [K.T.'s] vagina" in violation of section
800.04(7)(a), Florida Statutes....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1999 WL 252387
...Stout,
693 So.2d 657, 658 (Fla. 4th DCA 1997) (quoting Franco v. State,
376 So.2d 1168, 1170 (Fla. 3d DCA 1979), cert. denied,
386 So.2d 636 (Fla.1980)). [4] JUDGMENTS and SENTENCES AFFIRMED. GOSHORN and HARRIS, JJ., concur. NOTES [1] §
794.011(2)(a), Fla. Stat. (1995). [2] §
800.04(3), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2001 WL 427341
...vaginal area. State v. Milanes,
762 So.2d 572, 573 (Fla. 5th DCA 2000)("victim injury points *28 can be assessed when the accused is adjudicated guilty of fondling the victim"). [2] AFFIRMED. THOMPSON, C.J., HARRIS and SAWAYA, JJ., concur. NOTES [1] §
800.04(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1997 WL 194744
...Fried, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. In May, 1995, appellant, Roger Martin was placed on probation for several crimes, including a lewd assault or indecent act on a child under the age of 16 in violation of *1205 section 800.04(1), Florida Statutes (1995)....
CopyCited 1 times | Published | District Court of Appeal of Florida
and December 31, 2004, in violation of Florida Statute
800.04(5)(c)(2). COUNT III: Lewd or lascivious
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2013 WL 4764639, 2013 Fla. App. LEXIS 14319
SAWAYA, J. Rudolfo Caragol was convicted in 2002 of lewd or lascivious battery on a person over twelve but less than sixteen years of age in violation of section 800.04(4)(a), Florida Statutes (2001)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 3822100, 2012 Fla. App. LEXIS 14870
LaROSE, Judge. Eric Drawdy appeals his convictions and sentences for sexual battery of a child and for lewd or lascivious molestation. See §§
794.011(l)(h), (8)(b);
800.04(5)(a), Fla....
...while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (l)(h) commits a felony of the first degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. [[Image here]] §
800.04(5) Lewd or lascivious molestation.— (a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or...
...4th DCA 2001), where, because defendant fondled victim’s breast and vagina at practically the same time, he did not have time to reflect and form new criminal intent). Although appellate courts affirmed separate convictions for more than one type of sexual battery in a single episode, they did not do the same for section 800.04(4) lewd or lascivious batteries, despite the fact that the prohibited acts of oral, anal, or vaginal penetration or union were the same as those in the sexual battery statute....
...5th DCA 2007) (two lewd or lascivious acts of kissing victim’s vagina and touching genital area with penis in one episode not sufficiently discrete to deem separate offenses). To this point, the evolving judicial interpretation of sections
794.011 and
800.04 precluded conviction for both sexual battery and lewd or lascivious molestation in the same episode. State v. Meshell,
2 So.3d 132, 133 (Fla.2009), changed the landscape, extending the exception for distinct acts of sexual battery to the different types of lewd or lascivious battery identified in section
800.04(4) because the elements were the same....
...4th DCA 2009) (upholding four convictions for serial, distinct lewd and lascivious batteries in same episode); State v. Gonzalez,
24 So.3d 595 (Fla. 5th DCA 2009) (approving dual convictions for lewd and lascivious battery in single episode). Meshell , of course, involved section
800.04(4), and its holding did not extend to section
800.04(5), the statute under which the State charged Mr. Drawdy. See Me-shell,
2 So.3d at 134 (specifically limiting its double jeopardy review to section
800.04(4)); Brown v. State,
25 So.3d 78, 80 (Fla. 2d DCA 2009) (observing that Me-shell limited its holding to section
800.04(4))....
...s: §
794.011 Sexual battery.— (l)(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 [[Image here]] [[Image here]] *170 §
800.04(5) Lewd or lascivious molestation.— (a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks; or the clothing covering them, of a person less than 16 years of age, or forces or...
...nts of lewd or lascivious molestation [were] subsumed by the elements of the more serious crime of sexual battery.” Beahr,
992 So.2d at 847 . The court continued, “sexual battery cannot occur without a touching of one of the body parts listed in section
800.04(5). Because sexual battery requires such touching, one cannot commit sexual battery without simultaneously committing the crime described in section
800.04(5).” Id....
...necessarily follows that double jeopardy principles would not necessarily preclude convictions for two different sexual offenses committed by different actions during the same criminal episode. Id. The First District expanded MeshelVs holding beyond section 800.04(4) lewd or lascivious battery....
...Beahr,
992 So.2d at 847 . Here, Mr. Drawdy committed sexual battery by rape. See §
794.011(l)(h). The lewd or lascivious molestation he simultaneously committed was “intentionally touching] in a lewd or lascivious manner the breasts.... ” See §
800.04(5)....
...Vaginal penetration without touching the victim’s breasts or buttocks with some part of the perpetrator’s body would be acrobatic. See Beahr,
992 So.2d at 847 (“sexual battery cannot occur without a touching of one of the body parts listed in section
800.04(5)”)....
...-ton. Mr. Drawdy raised four other issues on appeal. We affirm on those issues without further discussion. Reversed in part, affirmed in part, and remanded. VILLANTI, J., Concurs. ALTENBERND, J., Concurs with opinion. .Before the legislature amended section 800.04 effective in October 1999, see ch. 99-201, § 6, at 1187-89, Laws of Fla., it read as follows: 800.04....
...Lewd, lascivious, or indecent assault or act upon or in presence of child.— A person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; [[Image here]] without committing the crime of sexual battery, commits a felony of the second degree. ... § 800.04, Fla....
...Offenses which are degrees of the same offense as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. . The apparent trend has not reached far enough to deem different variations of section 800.04(5) lewd or lascivious molestation to be separate offenses for double jeopardy purposes....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 13665, 2014 WL 4327951
...genital area, or buttocks, or the clothing covering them {or} did
force or entice [the Victim] to so touch GUSTAVO A. REYES, in
that GUSTAVO A. REYES did cause his penis to touch the
vaginal area, or vaginal genitalia area of [the Victim], contrary
to Florida Statute 800.04(5)(a) and (b).
Appellant’s argument implies that there is a substantive difference
between touching the clothes covering a body part and touching an actual
body part....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 14481
...urt issued on good cause shown.” Before trial and after J.S.’s first deposition of the victim, the State amended the petition for delinquency to reflect a change in its charges from lewd and lascivious conduct to lewd and lascivious molestation. Section 800.04(6)(a), Florida Statutes states that a person who “[(Intentionally touches a person under 16 years of age in *911 a lewd or lascivious manner” or solicits a person to “commit a lewd or lascivious act” commits “lewd or lascivious conduct.” Section 800.04(5)(a), Florida Statutes states that “[a] person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age ......
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 14478, 2010 WL 3766763
...Chapter 948 of the Florida Statutes governs probation. The State argues that not only is there no provision in chapter 948 authorizing or permitting the elimination of the reporting requirement from sex offender probation imposed upon a defendant convicted of a violation of section 800.04, criminalizing lewd and lascivious conduct involving children under sixteen, but the elimination of the reporting requirement is contrary to the very definition of sex offender probation....
...e justified as administrative probation. The Department of Corrections, not the trial court, is charged with transferring a defendant to "administrative probation” and administrative probation is not available for those convicted of a violation of section 800.04....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2001 WL 1093106
...Before COPE and GERSTEN, JJ., and NESBITT, Senior Judge. COPE, J. Douglas Foster appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm. In May, 1996, defendant-appellant Foster pled no contest to one count of lewd assault in violation of section 800.04, Florida Statutes (1995)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2000 WL 1340312
...ks was charged with the commission of a lewd or lascivious act in the presence of a minor. Burks argues that the evidence was insufficient as a matter of law to sustain the conviction. We conclude that under the facts of this case, Burks is correct. Section 800.04(4), Florida Statutes, entitled "Lewd, lascivious, or indecent assault or act upon or in presence of child," provides in pertinent part: A person who: * * * (4) Knowingly commits any lewd or lascivious act in the presence of any child u...
...The term "imports more than a negligent disregard of the decent proprieties and consideration due to others." McKinley v. State, 33 Okl. Cr. 434, 244 P. 208 (1926), cited by the Florida Supreme Court in Chesebrough for the foregoing general, usual meaning. As indicated in Chesebrough, which declared section 800.04 constitutional, the legislature has not defined "lewd and lascivious," and it is for the judiciary to apply those words based upon common understanding of them....
CopyCited 1 times | Published | Supreme Court of Florida
...section
787.01(2) (kidnapping) or
787.02(2)
(false imprisonment), Florida Statutes, if in the course of committing the
kidnapping or false imprisonment the defendant committed a sexual battery under
chapter 794, Florida Statutes, or a lewd act under section
800.04 or
847.0135(5),
Florida Statutes, against the victim;
b....
...or (3)(a)3., Florida
Statutes, (false imprisonment of a child under 13 with a sexual battery or lewd act);
- 40 -
d. section
794.011, Florida Statutes, (sexual
battery), excluding section
794.011(10);
e. section
800.04, Florida Statutes, (lewd or
lascivious offenses); or
f....
... The victim was years of age at the time of the offense.
Age of Defendant
The defendant was years of age at the time of the offense.
Relationship to Victim
The defendant is not the victim’s parent or guardian.
Sexual Activity [Section 800.04(4), Florida Statutes]
The offense did did not involve sexual activity.
Use of Force or Coercion [Section 800.04(4), Florida Statutes]
The sexual activity described herein did did not involve the use of
force or coercion.
Use of Force or Coercion/unclothed Genitals [Section 800.04(5), Florida Statutes]
The molestation did did not involve unclothed genitals or genital
area.
The molestation did did not involve the use of force or coercion....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1995 WL 608200
...We affirm the convictions but reverse the sentences imposed for the lewd and lascivious convictions. Appellant was charged with five counts of sexual battery on a child under twelve years of age in violation of section
794.011(2), Florida Statutes (1993), and three counts of a lewd and lascivious act in violation of section
800.04(4), Florida Statutes (1993)....
CopyCited 1 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 627, 2014 Fla. LEXIS 3068, 2014 WL 5285851
...Accordingly, we quash the decision of the First District.
I.
Following a jury trial, Frank Andre Mosley was convicted of: (1) lewd and
lascivious molestation of a person older than twelve but younger than sixteen by an
offender over the age of eighteen under section
800.04(5)(c)2., Florida Statutes
(2006); and (2) aggravated stalking of a minor under sixteen years of age under
section
784.048(5), Florida Statutes (2006)....
...2d at 629.
Section
775.082(9), Florida Statutes (2006), states in pertinent part:
(9)(a)1. “Prison releasee reoffender” means any defendant who
commits, or attempts to commit:
....
l. Aggravated stalking;
....
r. Any felony violation of s.
790.07, s.
800.04, s....
CopyCited 1 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 640, 2014 Fla. LEXIS 3067, 2014 WL 5285860
...FACTS AND PROCEDURAL HISTORY
As summarized by the district court below, the facts in this case are:
Debra LaFave, a school teacher, was charged in Hillsborough
County with two counts of lewd or lascivious battery, see
§ 800.04(4)(a), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1996 WL 581900
...1st DCA 1983) (quoting Coleman v. State,
420 So.2d 354 (Fla. 5th DCA 1982)). This Court cannot conclude that the prosecutor's remarks did not prejudice D'Annunzio. The judgment and sentence are reversed and remanded. PETERSON, C.J., and ANTOON, J., concur. NOTES [1] §
800.04, Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...y upon A.C., a
child twelve years of age or older but less than eighteen years of age, by a person
in familial or custodial authority in violation of section
794.011(8)(b), and two
counts of lewd and lascivious molestation of A.C. in violation of section
800.04(5)(c)2., Florida Statutes (2013)....
...cases under section
90.404(2)(b), the Florida Supreme Court noted in McLean that
4 As used in section
90.404(2)(b), “child molestation” includes, among other
crimes, the sexual battery counts charged under section
794.011(8)(b) and the lewd
and lascivious counts charged under section
800.04(5)(c)2....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2005 WL 2990951
...The testimony was substantiated by the physician's examination findings. Hence, there was sufficient evidence for the jury to convict appellant on this count and the trial court's denial of the motion for judgment of acquittal will not be reversed. § 800.04(5), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 16739, 2010 WL 4366018
...of ground two, and we remand for resentencing. Lawson was convicted after a jury trial of two counts of sexual battery in violation of section
794.011(5), Florida Statutes (1993), and one count of committing a lewd and lascivious act in violation of section
800.04(2), Florida Statutes (1993)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal
...dding thereto the following statement: We certify that this opinion is in direct conflict with Hall v. State,
511 So.2d 1038 (Fla. 1st DCA 1987) and Hoefert v. State,
509 So.2d 1090 (Fla. 2d DCA 1987). UPCHURCH, C.J., and COBB, J., concur. NOTES [1] §
800.04, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 20449, 2012 WL 5933010
...ther each touching constituted a distinct act. See Drawdy v. State,
98 So.3d 165 (Fla. 2d DCA 2012) (holding that “[t]he apparent trend [of analyzing distinct acts in sexual battery cases] has not reached far enough to deem different variations of section
800.04(5) lewd or lascivious molestation to be separate offenses for double jeopardy purposes”); Benjamin,
77 So.3d 781 (finding a double jeopardy violation where the defendant was convicted of lewd or lascivious molestation and lewd or las...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2007 WL 4119194
...red when the trial judge scheduled jury selection on 24-hours notice, four days before a Monday trial date that had been set six weeks before. By a two count information, Raylando Smith was charged with lewd or lascivious molestation in violation of section 800.04(5)(a), and lewd or lascivious conduct in violation of sections 800.04(6)(a) and (b), Florida Statutes (2004)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2006 WL 3327646
...Hagan, Assistant Attorney General, Daytona Beach, for Appellee. MONACO, J. The appellant, Jose Cruz, was convicted of one count of lewd and lascivious molestation and one count of lewd or lascivious conduct, both of which are violations of subsections of section 800.04, Florida Statutes (2004)....
...Cruz, who was over 18 at the time of the offenses, was convicted by jury trial of one count of the information that alleged that on October 4, 2004, he touched the breast or the clothing covering the breast of the victim, who was 15 years of age, in violation of section 800.04(5)(c)2, *1246 Florida Statutes (2004). He was also convicted of another count of the information that alleged that on the same date he sucked or kissed the neck of the victim in a lewd or lascivious manner, in violation of section 800.04(6)(b), Florida Statutes (2004)....
...first criminal episode occurred in the living room when Paul first entered the home. Specifically at issue are two counts: (1) count Ilewd and lascivious molestation by touching the victim's genital area or the clothing covering it in violation of section 800.04(5)(a); and (2) count Vlewd and lascivious conduct by kissing the victim's neck in violation of section 800.04(6)(a)....
...gard to the accusatory pleading or the proof adduced at trial ." §
775.021(4)(a), Fla. Stat. (2005) (emphasis added). Therefore, we must review the necessary elements of each violation under the statute itself. In comparing the elements of sections
800.04(5)(a) and
800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section
800.04(6)(a)(1) defines "lewd or lascivious conduct" as any intentional touching of "a person under 16 years of age in a lewd or lascivious manner," while section
800.04(5)(a) defines "lewd or lascivious molestation" as the intentional touching "in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less that 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator." §
800.04, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 7105, 2007 WL 1342531
...acquittal, we disagree. Not only did the child and the mother see the appellant remove his hand from the child’s clothing, but when confronted by the mother, he essentially admitted to the conduct. The evidence met the elements of the statute. See § 800.04(5)(a), Florida Statutes (2005) (“A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age ......
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2012 WL 1592172, 2012 Fla. App. LEXIS 7186
...lony violation of chapter 794 (sexual activity with a minor is a second-degree felony violation of chapter 794) and the offender has previously been convicted of, or found to have committed, or has pled nolo contendere or guilty to, any violation of section 800.04 (lewd and lascivious battery/conduct/exhibition)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2002 WL 883598
...The girl later showed the letter to law enforcement authorities and Wiggins was charged with attempting to handle, fondle, or assault a child under the age of 16 years old in a lewd, lascivious, or indecent manner in violation of sections
777.04(1) and
800.04(1), Florida Statutes (2000)....
...TAYLOR, J., specially concurring. I concur with the majority that appellant's conduct constitutes sufficient overt acts for an attempted lewd assault. I write only to point out that appellant's conduct in making a request and payment for sex is expressly covered under section 800.04(6)(a)2., Florida Statutes (1999)....
...Solicitation is the offer of money or other inducements to a person to have sex with the offeror. See Kobel v. State,
745 So.2d 979, 981 (Fla. 4th DCA 1999)(citing Register v. State,
715 So.2d 274 (Fla. 1st DCA 1998)). Consistent with the legislative goal of protecting children from sexual abuse and exploitation, section
800.04(6)(b) classifies a lewd or lascivious offense committed by a person 18 years of age or older a second degree felony.
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2016 WL 2930800, 2016 Fla. App. LEXIS 7563
...the maximum time allowed for the offense. We agree and reverse. On April 29, 2002, the State filed a three-count amended information (“the Information”) against Ricky Lee Tate, Count I charged him with lewd or lascivious battery in violation of section 800.04(4), Florida Statutes. Counts II and III charged him with lewd or lascivious molestation in violation of section 800.04(5)(d), Florida Statutes....
...charged offenses and his victim was thirteen years old, he should have been charged under section 800,04(5)(c)2., a second-degree felony, which carries a 15-year maximum sentence. §
775.082(3)(d), Fla. Stat. Instead, Tate was charged and convicted — apparently erroneously — under section
800.04(5)(d), which involves an offender under 18 years of age and is a third-degree felony, carrying a five-year maximum sentence....
CopyCited 1 times | Published | Supreme Court of Florida | 37 Fla. L. Weekly Supp. 352, 2012 WL 2848895, 2012 Fla. LEXIS 961
...11.17 UNLAWFUL RESIDENCY BY A SEX OFFENDER §
775.215(2) & (3), Fla. Stat: To prove the crime of Unlawful Residency by a Sex Offender, the State must prove the following elements beyond a reasonable doubt: L (Defendant) was convicted of Give a orb as applicable. a. [Florida Statute
794.011] [Florida Statute
800.04] [Florida Statute
827.071] [Florida Statute
847.0135(5) ] [Florida Statute
847.0145] b. a crime in another jurisdiction other than the State of Florida that is similar to Florida Statute [794.011] [
800.04] [827.071] [847.0135(5) ] [847.0145] 2. The victim of that crime was less than 16 years of age when the crime was committed. 3. Give a orb as applicable. a. The date that the crime occurred for the defendant’s conviction of Florida Statute [794.011] [
800.04] [827.071] [847.0135(5) ] [847.071] was on or after October 1. 2004. b. The date that the crime occurred for the defendant’s conviction in another jurisdiction that is similar to Florida Statute [794.011] [
800.04] [827.071] [847.0135(5) ] [847.071] was on or after May 26, 2010....
...Give if applicable and provide a special verdict. See Fla. Stat.
775.215(2)(b). If you find the defendant guilty of Unlawful Residency by a Sex Offender, you must then determine in your verdict whether the State has proven beyond a reasonable doubt that the conviction for Fla. Stat. [794.011] [
800.04] [827.071] [847.0135(5) ] [847.0145] was classified as a felony of the [first degree or higher] [second or third degree]....
...If you find the defendant guilty of Unlawful Residency by a Sex Offender, you must then determine in your verdict whether the State has proven beyond a reasonable doubt that the conviction in the other jurisdiction for the crime that was similar to Fla. Stat. [794.011] [800.04] [827.071] [847.0135(5) ] [847.0145] resulted in a penalty that is substantially similar to a felony of the [first degree or higher] [second or third degree]....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...On appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.
May 16, 2018
B.L. THOMAS, C.J.
Appellant, Rafael Jacob Stoffel, appeals his conviction and
sentence for lewd or lascivious molestation of a child under the
age of twelve. § 800.04(5), Fla....
...lewd or
lascivious manner the breasts, genitals, genital area, or buttocks,
or the clothing covering them, of a person less than twelve (12)
years of age, S.P., . . ., 9 years of age, or force or entice S.P. to
touch the perpetrator, in violation of Section 800.04(5)(b), Florida
Statutes.”
The language of the information makes no mention of
Appellant’s touching being against the will of S.P., and there is
no evidence in the record to support the finding that S.P....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2013 WL 1918863, 2013 Fla. App. LEXIS 7505
...The prosecutor’s reference to this irrelevant testimony during only the rebuttal portion of his closing contributed to its harmfulness, since the defendant had no opportunity to respond to those comments. REVERSED and REMANDED. SAWAYA, PALMER and EVANDER, JJ., concur. . See § 794.01 l(8)(b), Fla. Stat. (2009). . § 800.04(5)(a), (c)2....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 6429, 2015 WL 1942903
...anal penetration of another by any other object.” §
794.011(l)(h), Fla. Stat. (2011). Lewd or lascivious battery is committed when a person engages in sexual activity with a person twelve years of age or older, but less than sixteen years of age. §
800.04(4)(a), Fla. Stat. (2011). Sexual activity 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 other object.” §
800.04(l)(a), Fla....
...However, Roughton is distinguishable from the instant case because Roughton involved a claim of lewd or lascivious molestation rather than lewd or lascivious battery. Lewd or lascivious battery, unlike lewd or lascivious molestation, does not require a lewd or lascivious intent. See §
800.04(1), Fla. Stat. (2011). AFFIRMED in part; REVERSED in part; REMANDED. PALMER, EVANDER and LAMBERT, JJ., concur. . §
794.011, Fla. Stat. (2011). . §
800.04, Fla....
CopyCited 1 times | Florida 6th District Court of Appeal
...(internal
quotations omitted).
Under section
943.04354, “a person shall be considered for removal of the
requirement to register as a sexual offender . . . only if the person . . . [w]as convicted
. . . or adjudicated delinquent of a violation of” section
800.04,
827.071, or
847.0135(5), “is required to register as a sexual offender ....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 3619, 2009 WL 559908
...We disagree. The decision issued by our Supreme Court in State v. Werner,
609 So.2d 585 (Fla.1992), supports the trial court's ruling. In that case, the Court was asked to define the word "presence" for purposes of the lewd and lascivious act statute, section
800.04(3) of the Florida Statutes, which provides that any person who 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....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2014 WL 856498, 2014 Fla. App. LEXIS 2972
...ing. We affirm the first issue without further comment. Cleveland argues that the State failed to present sufficient evidence to establish that he committed lewd or lascivious conduct by solicitation. The information charged Cleveland with violating section 800.04(6), Florida Statutes (2010), which provides that lewd or lascivious conduct occurs when a person “[s]olicits a person under 16 years of age to commit a lewd or lascivious act.” In order to prove lewd or lascivious conduct by way of...
...e victim. The decision in Patel is also not applicable because Patel was charged with soliciting the victim, a child under the age of sixteen, to commit sexual battery on another child younger than age sixteen, in violation of sections
777.04(2) and
800.04(2), Florida Statutes (1989). Id. at 851 . Because the 1989 version of section
800.04 did not refer to solicitation, the State was required to charge the defendant with violating both statutes. * Id. Here, Cleveland was charged only with violating section
800.04(6)....
...1st DCA 2007). We, therefore, affirm Cleveland’s convictions, vacate his sentences, and remand for resentencing. AFFIRMED in part, REVERSED in part, and REMANDED. ROWE and OSTERHAUS, JJ„ concur. PADOVANO, J., concurs in part and dissents in part. Section 800.04(6) was added in 1999 to expressly proscribe the act of solicitation....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2006 WL 782835
...rsed. On the basis of the double jeopardy issue, we reverse in part and affirm in part. Leyva relies on Welsh v. State in support of his argument that the charges are mutually exclusive.
850 So.2d 467 (Fla.2003). Welsh involved an earlier version of §
800.04, Fla....
...The previous version specifically excluded sexual battery as a means of perpetrating a lewd and lascivious act. Id. at 470. The Florida Supreme Court found that "[t]hus, the ... provisions make clear that the offenses of sexual battery and lewd and lascivious act are mutually exclusive." Id. However, section 800.04, Florida Statutes, was substantially amended in 1999, and does not contain any language pertaining to sexual battery....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1995 WL 111267
...credit for time previously served on probation and in jail. We agree, reverse and remand for resentencing. In May 1988, Baker pleaded no contest to a charge of lewd and lascivious assault on a child under the age of sixteen, a second degree felony. § 800.04, Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2007 Fla. App. LEXIS 3855, 2007 WL 776521
...Our review of the record leads us to conclude that Spioch is correct and the trial court should have vacated seven counts, not six. As for count 20, this count merely alleged that Spioch “did then and there handle or fondle a child ... in a lewd, [illegible single word — probably “lascivious”] contrary to Section 800.04(1), Florida Statutes.” The trial court correctly held that this count did not allege sufficient elements to define a crime and as such defense counsel was ineffective for failing to argue the improper nature of the count....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 WL 1003597, 2013 Fla. App. LEXIS 4185
...Bracey’s counsel initially objected to the points scored for this prior conviction. Bracey admitted that he had an Illinois conviction for a sexual offense; however, he argued that his Illinois conviction was a misdemeanor offense and that his actual conduct was more akin to a lewd and lascivious offense under section 800.04, Florida Statutes (2010)....
...Illinois offense to the potentially applicable Florida Statutes was the proper way to score the out-of-state offense, (2) the facts underlying Bracey’s Illinois conviction were comparable to *314 Florida offenses under either section
794.011(5) or section
800.04(4), (3) either of those Florida offenses would be scored as a level eight offense, and (4) therefore the points on Bracey’s scoresheet were correctly scored regardless of the provisions of the Illinois statute under which he was actually convicted....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1990 WL 17516
...Gen., Tallahassee, and Laura Griffin, Asst. Atty. Gen., Daytona Beach, for appellee. DANIEL, Chief Judge. Defendant, Anthony M. Graham, appeals from the sentence imposed following his *670 plea of no contest to the charge of lewd and lascivious assault upon a child in violation of section 800.04, Florida Statutes (1987)....
...The age of the victim, M.K., to wit: eight (8) years, and the fact that said child was vulnerable because of her age. This is not a proper reason for departure since the age of the victim is itself an inherent component of the offense charged. See Molden v. State,
530 So.2d 1000 (Fla. 1st DCA 1988). See also §
800.04, Fla....
...Everyone who breaks a criminal law violates this trust. Being naturally innocent in sexual matters, all children are especially vulnerable to the physical, mental, and emotional harm that can result from exposure to gross adult lewd acts. To protect children from that harm is the very purpose for section 800.04, Florida Statutes, which prohibits lewd acts on, or in the presence of, children....
...Because it is only a difference in degree that all children are vulnerable to being victimized by lewd acts and because all who violate this statute also violate some degree of trust, departure from the recommended guidelines sentence for the basic offense of lewd acts on or in the presence of a child (section 800.04, Florida Statutes), should not be based on these two particular factors....
...Abuse of trust and vulnerability are somewhat vague, subjective concepts. If they are held to authorize departure sentences, the "exceptional case" will become the rule, and departure sentences, rather than recommended sentences, will be authorized in a large percentage of all sentences based on violations of section 800.04, Florida Statutes....
...To hold otherwise would be to flaunt or ignore the well established principle of separation of powers enunciated in the constitution which governs us all. Sentence VACATED; case REMANDED for resentencing within the guidelines. COBB and W. SHARP, JJ., concur. NOTES [1] Section 800.04 provides: 800.04 Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1994 Fla. App. LEXIS 5423, 1994 WL 244429
..., [1] where he is serving concurrent ten-year sentences for lasciviously assaulting a child. On April 23, 1991, Gramegna entered a plea of no contest to three counts of lewd, lascivious, or indecent assault or act upon or in the presence of a child. § 800.04(1), Fla....
...Florida as one of great public importance: WHETHER, FOR PURPOSES OF CONTROL RELEASE ELIGIBILITY DETERMINATIONS UNDER SECTION
947.146(3)(C), FLORIDA STATUTES, A CHILD UNDER THE AGE OF SIXTEEN CAN CONSENT TO SEXUAL ACTS THAT CONSTITUTE A VIOLATION OF SECTION
800.04, FLORIDA STATUTES? The denial of the petition for writ of mandamus is affirmed and the foregoing questions are certified to the Supreme Court of Florida....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2002 WL 1371025
...In summary, we affirm the sentence for count I, including the sexual predator designation and the imposition of the $3500 lien, but reverse the sentence for count II, and remand for resentencing on count II with a corrected scoresheet. WHATLEY and NORTHCUTT, JJ., Concur. NOTES [1] §
794.011(2)(a), Fla. Stat. (1993). [2] §
800.04, Fla....
CopyCited 1 times | Published | Court of Appeals for the Eleventh Circuit | 1995 U.S. App. LEXIS 15578
...Ramsey appealed the deportation order to the Board of Immigration Appeals (BIA). After conducting a de novo review, the BIA dismissed Ramsey’s appeal. Ramsey now appeals from the BIA decision, contending that the BIA erred in determining his conviction for attempted lewd assault under Florida Statutes § 800.04(1) was an aggravated felony, and that the BIA abused its discretion by denying Ramsey’s request for a waiver of deport-ability under INA § 212(c), 8 U.S.C....
...Ramsey’s mother, brother, and sister live in the United States; they are all United States citizens. In addition, Ramsey has fathered four children, all of whom live in the United States and are United States citizens. On September 10, 1990, Ramsey was convicted of lewd assault in violation of Florida Statutes §
800.04(2) for having committed a sexual battery “upon A.R., a child under the age of 16 years, by inserting his penis in A.R.’s vagina.” (R.l at 190, 194). He was sentenced to five years of supervised probation. While Ramsey was still on probation, he committed another violation. On March 8, 1993, Ramsey was charged with violating Florida Statutes §§
777.04(1) and
800.04(1) by “attempting] to commit a Lewd Assault.” The information alleged that Ramsey “attempted] to rub M.W.’s vagina, but [he] failed in the perpetration or was intercepted or prevented in the execution of said offense.” (R.l at 171)....
...41(a)(2)(A)(iii) as an aggravated felon. Ramsey contends that his conviction for attempted lewd assault is an aggravated felony only if it constitutes a crime of violence, as defined in 18 U.S.C. § 16 . Ramsey argues that his violation of Fla.Stat. § 800.04 is not a crime of violence....
...al risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 16 . In determining whether Ramsey committed a crime of violence by violating Florida Statutes §§
777.04(1) and
800.04(1), we only look at the statutory definition of the crime of conviction, not the underlying facts and circumstances of Ramsey’s particular offense....
...ened use of physical force,” or whether the offense, if a felony, involves a substantial risk of the use of physical force. See id.; United States v. Rodriguez,
979 F.2d 138, 141 (8th Cir.1992). Ramsey violated Florida Statutes §§
777.04(1), and
800.04(1), by attempting a lewd assault on a child under the age of 16. Section
777.04(1) criminalizes the attempt to commit substantive offenses. Section
800.04(1) defines the underlying substantive offense that Ramsey attempted to commit....
...ous, or indecent manner; 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. ... Fla.Stat. §
800.04. Thus, a violation of section
800.04 may be committed through a variety of acts, such as handling, fondling, or assaulting a child in a lewd, lascivious, or indecent manner. Although a violation of §
800.04 might be accomplished without the use of physical force, we conclude that the offense is a felony which involves a substantial risk that physical force may be used against the victim in the course of committing the offense. Two other circuits have come to the same conclusion in analyzing similar statutes. See Reyes-Castro,
13 F.3d at 378-79 ; Rodriguez,
979 F.2d at 140-41 . Therefore, we hold that a violation of Florida Statutes §
800.04(1) is a “crime of violence” as defined in 18 U.S.C. § 16 . We note that Ramsey was not convicted of the substantive offense, but rather of attempting to commit an act in violation of §
800.04(1)....
...t physical force would be used, it follows that an attempt to commit such a crime also involves a substantial risk of physical force. Therefore, we conclude that the attempt to commit lewd assault, in violation of Florida Statutes §§
777.04(1) and
800.04(1), is a felony involving a substantial risk that physical force may be used against the victim....
...§ 16 , thereby constituting an aggravated felony under INA § 101(a)(43). 5 Consequently, the BIA did not err in finding Ramsey deportable as an aggravated felon pursuant to INA § 241(a)(2)(A)(iii). *584 IV. CONCLUSION We hold that an attempt to commit a lewd assault in violation of Florida Statutes §§
777.04(1) and
800.04(1) is a “crime of violence” as defined in 18 U.S.C....
...is conduct in December 1992. Because both the criminal conduct and the conviction for this offense took place after the effective date of the 1990 amendment, Ramsey's conviction for attempted lewd assault in violation of Fla.Stat. §§
777.04(1) and
800.04(1) constitutes an "aggravated felony” if the underlying crime constitutes a “crime of violence” as stated in INA § 101(a)(43)(F)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 9362, 2009 WL 1703271
...Cauley's opinion may or may not be clinically correct, it is legally flawed. In the Jimmy Ryce Act, the Legislature defined a "sexually violent offense" as including a "lewd, lascivious or indecent assault or act upon or in the presence of a child in violation of s.
800.04 or s.
847.0135(5)." §
394.912(9)(e), Fla. Stat. (2008). And, section
800.04(7), Florida Statutes, expressly criminalizes lewd exhibition in the presence of a child under sixteen....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 WL 3265542, 2016 Fla. App. LEXIS 9208
...ild, a
violation of section
847.0135(4)(b), Florida Statutes (2012); (2) unlawful use of a two-
way communications device, a violation of section
934.215, Florida Statutes (2012); and
(3) attempted lewd battery on a child, a violation of sections
800.04(4) and
777.04(1),
Florida Statutes (2012)....
...purpose of engaging in sexual conduct with a child violate principles of double jeopardy.
We will consider these points separately below.
-2-
III. THE SUFFICENCY OF THE EVIDENCE TO PROVE AN ATTEMPT
Under section 800.04(4): "A person who: (a) Engages in sexual activity
with a person 12 years of age or older but less than 16 years of age; or (b) Encourages,
forces, or entices any person less than 16 years of age to engage in sadomasochistic
abuse, s...
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 8247, 2010 WL 2330419
...Giambalvo, Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee. KHOUZAM, Judge. Jessie Montgomery appeals his judgment and sentence for lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2008)....
...Montgomery was sentenced pursuant to section
775.082(3)(a), which provides: (3) A person who has been convicted of any other designated felony may be punished as follows: . . . . 4. a. Except as provided in sub-subparagraph b., for a life felony committed on or after September 1, 2005, which is a violation of s.
800.04(5)(b), by: (I) A term of imprisonment for life; or (II) A split sentence that is a term of not less than 25 years' imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person's natural life, as provided in s....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1998 WL 428809
...Although not defined in chapter 798, the words "lewd" and "lascivious" have been defined in cases interpreting this and similar statutes. In Chesebrough v. State,
255 So.2d 675, 677 (Fla.1971), the Florida Supreme Court upheld the constitutionality of section
800.04, Florida Statutes, a statute which proscribed a lewd and lascivious act in the presence of a child. Even though section
800.04 did not contain definitions of lewd and lascivious, the supreme court held: "Lewd" and "lascivious" are words in common use, and the definitions indicate with reasonable certainty the character of the acts and conduct which the Legisla...
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2014 WL 3671334, 2014 Fla. App. LEXIS 11369
...If the 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. (Emphasis added). Here, Wilkerson was convicted under section
800.04(4)(b), a second-degree felony, generally punishable by a term of imprisonment of up to fifteen years....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2005 WL 1682322
...e defining the crime will be found to be insufficient to put the accused on notice of the misconduct charged."). The principle stated in Bashans does not preclude the charged offense of sexual battery from encompassing lesser included offenses under section 800.04, Florida Statutes....
...Although the question of whether lewd or lascivious molestation is a permissive lesser included offense of sexual battery has not, to our knowledge, been yet decided by any Florida court, we decline to address it because Gresham failed to preserve it for appellate review. Until October 1, 1999, section 800.04, Florida Statutes, provided that the perpetration of various indecent acts "without committing the crime of sexual battery" constituted lewd or lascivious assault....
...At the charge conference in the case at bar, Gresham requested an instruction on "lewd and lascivious" as a lesser included offense, and counsel and the judge repeatedly used the term "lewd and lascivious," without distinguishing between the four kinds of lewd or lascivious conduct prohibited in different subsections of section 800.04....
...ffense of breaking and entering, because appellant failed to advise the court which of the numerous trespass statutes he considered to be lesser included to the offense charged). AFFIRMED. ERVIN, BARFIELD and VAN NORTWICK, JJ., concur. NOTES [1] See § 800.04(4) (lewd or lascivious battery); § 800.04(5) (lewd or lascivious molestation); § 800.04(6) (lewd or lascivious conduct); § 800.04(7) (lewd or lascivious exhibition).
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1997 WL 361847
...Butterworth, Attorney General, Tallahassee, and Michael J. Scionti, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. Milo Fred James III appeals his sentence for lewd and lascivious act in the presence of a child under the age of 16. See § 800.04(3), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2012 WL 2864380, 2012 Fla. App. LEXIS 11396
...1st DCA 2010) (“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....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 10784, 2005 WL 1631090
...is unlawful and that she is entitled to immediate release. We exercise our jurisdiction pursuant to Article V, section 4(b)(3) of the Florida Constitution and grant the petition. The petitioner was arrested for possession of cocaine in violation of section 800.04(4)(a), Florida Statutes (2003), and she was later released on bond....
CopyCited 1 times | Published | Supreme Court of Florida | 20 Fla. L. Weekly Supp. 338, 1995 Fla. LEXIS 1139, 1995 WL 410690
Or In The Presence Of Child; Sexual Battery F.S.
800.04” to include a definition of “in the presence
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 9955
...See State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986).
II. Evidence of Invocation of the Right to Remain Silent
Moss’s additional argument, that the court erred in admitting the redacted
2009) (holding “the sex acts proscribed in section
800.04(4) (oral, anal, or vaginal
penetration) are of a separate character and type requiring different elements of
proof and are, therefore, distinct criminal acts,” each of which may be the subject
of a separate conviction)....
CopyCited 1 times | Florida 4th District Court of Appeal
...greater than [the defendant’s] original sentence.” Id. (citing Rigueiro,
132
So. 3d at 854).
Here, the defendant’s LPS of 325.5 months exceeded the fifteen-year
statutory maximum sentence on the three lewd and lascivious molestation
counts. See §
800.04(5)(c)1., Fla....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 26
PETERSON, Chief Judge. The State of Florida appeals the dismissal of charges of statutory rape against two 15-year-old boys who engaged in “consensual” sex with two 12-year-old girls. The trial court dismissed the charges finding that section 800.04, Florida Statutes (1993) 1 , was unconstitutional as applied to the youths because it violated their right to privacy and equal protection under the law....
...sentence. We do observe, however, that it might be appropriate to impose a harsh sentence depending on the circumstances of the commission of the crime and the criminal history of the juvenile. We now come to the issue of whether the application of section
800.04 to these two 15 year old boys invades their privacy rights when they engage in sex with 12 year old girls. First, it must be recognized that it is appropriate to charge a minor under this statute. In L.L.N. v. State,
504 So.2d 6 (Fla. 2d DCA), rev. denied,
511 So.2d 299 (Fla.1987), the second district upheld the constitutionality of section
800.04 against a vagueness challenge....
...The crux of the state’s interest in the minor-to-minor situation is in protecting the minor from the sexual activity itself for reasons of health and quality of life. Id. at 259. The conclusion to be drawn from the supreme court’s statements in B.B. and the legislature’s statement in section 800.04 is that sexual activity between minors is prohibited whether or not each of the participants believe that they have “consented.” There should be little doubt of this in view of the *1369 decision in L.L.N....
...Florida has been content with the penalty applicable to minors under the age of 16 at least since 1987 and neither the consequences of minors having sex nor the potential risk of being declared a felon has been an effective deterrent. Perhaps it is precisely because there is a reluctance to apply section 800.04 to minors and they recognize that reluctance....
...as a felony, the penalty is viewed as an act by the legislature that oversteps its bounds. 2 The potential for harm in engaging in the sex act can be as great as, for example, grand theft. We decline to eliminate by judicial fiat whatever restraint section 800.04 provides in prohibiting sexual activity by minors in furtherance of the state’s compelling interest in preventing such conduct and its consequences....
...other criminal activity by a minor. We vacate the dismissal by the trial court and remand for further proceedings. *1370 We do, however, certify the following question as one of great public importance: WHETHER THE POTENTIAL PENALTY FOR VIOLATION OF SECTION 800.04, FLORIDA STATUTES, BY A MINOR UNDER THE AGE OF SIXTEEN FURTHERS A COMPELLING STATE INTEREST THROUGH THE LEAST INTRUSIVE MEANS. REMANDED. COBB and ANTOON, JJ., concur. . 800.04....
CopyCited 1 times | Published | Supreme Court of Florida | 1995 WL 27510
...____ for disclosure of the child's HIV test results FINDS that: The child, ______ (name) ______, ______ is alleged by petition for delinquency to have committed/has been adjudicated delinquent for ______ a sexual offense proscribed in chapter 794 or section 800.04, Florida Statutes, involving the transmission of body fluids from one person to another....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 292, 2003 WL 131587
PER CURIAM. Patrick Foss appeals his conviction for four counts of sexual battery on a child under 16 and two counts of lewd or lascivious molestation pursuant to section 800.04, Florida Statutes (1999). The amended information properly set forth the elements necessary to charge Foss with violations of sections 800.04(4)(a) and 800.04(5)(a), Florida Statutes (1999), but erroneously cited to section 800.04(2), Florida Statutes (1999)....
CopyCited 1 times | Published | District Court, S.D. Florida | 2004 U.S. Dist. LEXIS 1045, 2004 WL 170017
...wdness" in the context of other statutes. Plaintiffs direct the Court to Chesebrough v. State,
255 So.2d 675 (Fla.1971) and Bell v. State,
289 So.2d 388 (Fla.1973). In Chesebrough, the Florida Supreme Court upheld the constitutionality of Fla. Stat. §
800.04, prohibiting lewd assaults or acts upon or in the presence of a child....
...State,
590 So.2d 404 (Fla.1991). There, the Florida Supreme Court interpreted the term "lewd" in the context of two felony statutes, Fla. Stat. §
827.071 (prohibiting the knowing possession of any depiction known to include sexual conduct by a child) and Fla. Stat. §
800.04: Under Florida criminal law the terms "lewd" and "lascivious" are synonymous: Both require an intentional act of sexual indulgence or public indecency, when such act causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others.......
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 2847, 2016 WL 746480
...contributions as of the date of termination.
The definition of a "specified offense" applicable to this case is section
112.3173(2)(e)(7), which provides as follows:
The committing on or after October 1, 2008, of any
felony defined in s.
800.04 against a victim younger than 16
years of age, or any felony defined in chapter 794 against a
-4-
victim younger than 18 years of age, by a public officer or...
...2d 1250, 1251 (Fla. 3d
DCA 1999).
Under the foregoing statutory framework, the Board was required to prove
the following elements: (1) that Mr. Rivera was a public officer or employee; (2) that Mr.
Rivera had committed either any felony defined in section 800.04 against a victim
younger than sixteen years of age or any felony defined in chapter 794 against a victim
younger than eighteen years of age; (3) that the offense or offenses were committed on
or after October 1, 2008; and (4) that Mr....
...Rivera would almost certainly have used his City-issued keys to gain
access to the property where he was arrested. However, the Board did not present any
-9-
evidence that Mr. Rivera committed an offense under chapter 794 or under section
800.04 on the date of his arrest.
In support of the forfeiture order, the Board relies on its own Notice of
Disciplinary Action as the necessary nonhearsay evidence of the fourth element....
CopyCited 1 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 70, 2016 Fla. LEXIS 392, 2016 WL 743245
...touches in a lewd or lascivious manner [4] the breasts, genitals, genital area, or buttocks, or the clothing covering them,'of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator[.]” § 800.04(5)(a), Fla....
...he proof adduced at trial, even where an alternative conduct statute is implicated. It is so ordered. LABARGA, C.J., and PARIENTE, LEWIS, POLSTON, and PERRY, JJ., concur. QUINCE, J., dissents with an opinion. . §
794.011(2)(a), Fla. Stat. (2008). . §
800.04(5)(b), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 2365, 2014 WL 656756
...atutes (2011), a second-degree felony; (2) solicitation of a minor (or parent) via computer in violation of section
847.0135(3)(b), Florida Statutes (2011), a third-degree felony; and (3) attempted lewd or lascivious battery in violation of sections
800.04(4)(a) and
777.04, Florida Statutes (2011), a third-degree felony....
...Also, over the State’s objection, the trial court refused to impose sex offender probation, finding that because Fureman entered an open plea to Count 3 for attempt *405 ed lewd and lascivious battery in violation of section
777.04 and not actual lewd and lascivious battery in violation of section
800.04(4)(a), section
948.30’s provisions of sex offender probation were inapplicable....
...5th DCA 2002), noting that we had previously adopted the reasoning of Wilcox and held that attempted sexual battery is an offense under the sexual battery statute, as opposed to the attempt statute, (citing Thurman,
791 So.2d at 1230 ). Here, Fureman was charged under section
800.04(4)(a), which provides: (4) Lewd or lascivious battery....
...— A person who: (a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; ... commits lewd or lascivious battery, a felony of the second degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. §
800.04, Fla. Stat. (2011). Although he entered an open plea to attempted sexual battery, like Thurman and Donovan , Fureman’s offense is in violation of section
800.04. The sex-offender-probation statute mandates sex offender probation for violations of section
800.04, as follows: Conditions imposed pursuant to this section do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this section. (1) Effective for probationers or community controllees whose crime was committed on or after October 1, 1995, and who are placed under supervision for violation of chapter 794, s.
800.04, s....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 3452
...GRIFFIN and COHEN, JJ., concur. . We are cognizant of the recent decision of the Florida Supreme Court in Meshell v. State,
980 So.2d 1169 (Fla. 5th DCA 2008), decision quashed,
2 So.3d 132 (Fla.2009), which found that for crimes of lewd or lascivious batter)', section
800.04(4), Florida Statutes (2006), these could be of a separate character and type requiring different elements of proof. Under our facts, however, and section
800.04(6)(c), Florida Statutes (2006), the illegal conduct does not involve "sexual activity.” With only one exception, not relevant to this appeal, lewd or lascivious conduct only requires the intentional touching of someone under age 16 i...
CopyCited 1 times | Florida 2nd District Court of Appeal
...Dominguez violated section
794.011(5)(a), Florida Statutes (2016), by committing sexual battery on
the victim, and both counts alleged different acts of sexual battery.
Counts IV and V alleged that between July 17, 2016, and December 31,
2020, Mr. Dominguez violated section
800.04(4)(a)1, (b), Florida Statutes
(2016), by committing lewd or lascivious battery by engaging "in sexual
activity with" the victim on one or more occasions....
...344,
380 (1906)). Mr. Dominguez's charges in counts I and III are
undoubtedly the same in law because both counts charge him with
violating section
794.011(5)(a). The same is also true for counts IV and V
because both counts charge him with violating section
800.04(4)(a)1, (b).
Thus, the question is whether the offenses are the same factually.
When deciding whether offenses are the same in fact, courts must
determine whether the two convictions are based on distinct acts that
permit separate punishments under the statute....
...s' test applies." Id. at 748
(quoting Graham v. State,
207 So. 3d 135, 141 (Fla. 2016)). 3
Because Mr. Dominguez was convicted twice for the same criminal
prohibition under the same criminal statute—twice for lewd or lascivious
battery under section
800.04(4)(a)1, Florida Statutes (2016)—the double
jeopardy question in this case implicates the "distinct acts" test....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 1581, 2010 WL 532798
...in order to secure an injunction for repeat violence. See, e.g., Gasilovsky v. Ben-Shimol,
979 So.2d 1179 (Fla. 3d DCA 2008). Each act must be proved by competent substantial evidence. Id. See also Sorin v. Cole,
929 So.2d 1092 (Fla. 4th DCA 2006). Section
800.04 prohibits lewd and lascivious acts. Only one section could apply to the facts of this case. Section
800.04(6)(a) provides that: "A person who: ......
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...and Sheridan Weinstein, Legal Intern, for appellee. Before CHARLES CARROLL, HENDRY and HAVERFIELD, JJ. PER CURIAM. By an indictment of a grand jury in Dade County the appellant Joseph Vincent Hale, Jr. was charged in each of three counts with violation of § 800.04 Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 Fla. App. LEXIS 1547, 2013 WL 376054
BLACK, Judge. On August 13, 2008, Joshua Jeffers pleaded guilty to one count of lewd and lascivious battery in violation of section 800.04, Florida Statutes (2007)....
...should credit Jeffers’ new probationary sentence with the amount of time he previously served on probation. Affirmed in part, reversed in part, and remanded. SILBERMAN, C.J., and CASANUEVA, J., Concur. . Lewd and lascivious battery in violation of section
800.04 is a qualifying offense under section
948.06(8)(c)(5)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2003 Fla. App. LEXIS 18329, 2003 WL 22849445
...mission of the crime during the period alleged in the information. The two-count information in this case alleged that Gamble committed two separate sexual offenses, one count of lewd fondling occurring before October 1, 1999, under the old statute, section 800.04(1), Florida Statutes (1993), and one count of lewd and lascivious molestation occurring after October 1,1999, until March 30, 2000, under the new statute, section 800.04(5)(b), Florida Statutes (1999)....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1986 Fla. App. LEXIS 16564
decision was to uphold the constitutionality of section
800.04, Florida Statutes (1985), and affirm the appellant’s
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2006 WL 3589002
...Robinson,
873 So.2d 1205, 1208-09 (Fla.2004). Because the state properly concedes error, we reverse and remand for further proceedings. Appellant pled nolo contendere to three counts of lewd or lascivious exhibition, which are second-degree felonies. §
800.04(7), Fla....
...Statutes (2004). However, the state's motion did not mention whether appellant had any prior convictions. The trial court entered an order the same day as the state's motion, designating appellant a sexual predator. Where, as here, the violation of section 800.04 is a second-degree felony, appellant must have a prior conviction for one of the crimes specified by the statute before he can be designated a sexual predator....
...Additionally, the trial court never made a determination of whether appellant had prior qualifying convictions. As such, this case is indistinguishable from Nicholas v. State,
844 So.2d 826 (Fla. 5th DCA 2003) (reversing and remanding where the appellant pled no contest to lewd and lascivious assault pursuant to section
800.04, Florida Statutes, a second-degree felony, and the trial court's order designating the appellant a sexual predator was entered without notice and without a hearing, and the appellant argued on appeal that he had no prior qualifying offenses)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2002 WL 1815874
...Columbo's expert opinion which had been proffered long before the trial, and was known to the defense that young children often make such anatomical mistakes. AFFIRM. THOMPSON, C.J. and SAWAYA, J., concur. NOTES [1] §
794.011(2), Fla. Stat. [2] §
784.03, Fla. Stat. [3] §
800.04(1), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 13744, 2011 WL 3820700
SHEPHERD, J. The appellee, Robert Marcel, pled nolo contendere to the offense of unlawfully and intentionally touching a person under sixteen years of age in a lewd or lascivious manner, in violation of section 800.04(6)(c), Florida Statutes (2001)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2001 WL 984717
...We therefore withdraw our opinion filed on March 7, 2001, and substitute the following in its place. The motion for certification is also denied. Farrell appeals his conviction and sentence for two counts of lewd, lascivious, and indecent assault upon a child. We affirm. Farrell argues that he cannot be convicted under section
800.04, Florida Statutes (1997), because the only evidence presented at trial involved the victim touching him, not the other way around. We disagree. "Lewd and lascivious conduct is not limited to acts involving physical contact, threat thereof or manifested desire therefor." Egal v. State,
469 So.2d 196, 198 (Fla. 2d DCA 1985). The intent required by section
800.04 "can be imputed from the circumstances." Thus, the requisite intent can be imputed from Farrell's acquiescence to the child's touch....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2012 WL 3329213, 2012 Fla. App. LEXIS 13544
...n. In response, the State asserted that under the Jessica Lunsford Act 1 , electronic monitoring was a manda *437 tory condition of Flynn’s probation sentence because Flynn had previously been convicted of a lewd and lascivious act in violation of section 800.04, Florida Statutes....
...4th DCA 2008) (noting that “[u]nder section
948.30, Florida Statutes, the trial court was required to impose electronic monitoring as a mandatory condition of probation because of [the defendant’s] prior convictions for violations of Chapter 794 and Section
800.04,” but reversing the court’s imposition of electronic monitoring on jurisdictional grounds); Harroll v....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 3326347, 2012 Fla. App. LEXIS 13573
...We grant the State’s petition in order to correct a departure from the essential requirements of the law resulting in a gross miscarriage of justice. I. Facts Debra LaFave, a school teacher, was charged in Hillsborough County with two counts of lewd or lascivious battery, see § 800.04(4)(a), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1809922
...ense and to resentence Thornton accordingly. [1] We note that although there was insufficient evidence to support a capital sexual battery conviction, there was ample evidence to support a conviction for lewd and lascivious molestation. [2] See *278 § 800.04(5), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2004 WL 1779021
...s Act. The trial court disagreed and withheld adjudication, placing Bouchillon on six years probation with certain special conditions. The State now appeals. Bouchillon was convicted of committing a lewd or lascivious battery which is a violation of section 800.04(4)(a), Florida Statutes....
...ification under subsection (7) if: 1. The felony is: a. A capital, life or first degree felony violation, or any attempt thereof, of s.
787.01 or s.
787.02, where the victim is a minor and the defendant is not the victim's parent, or of chapter 794, s.
800.04, or s....
...847.0145, or a violation of a similar law of another jurisdiction; or b. Any felony violation, or any attempt thereof, of s.
787.01, s. *413
787.02, or s.
787.025, where the victim is a minor and the defendant is not the victim's parent; chapter 794, excluding ss.
794.011(10) and
794.0235; s. 796.03; s.
800.04; s....
...led nolo contendere or guilty to, regardless of adjudication, any violation of s.
787.01, s.
787.02, or s.
787.025, where the victim is a minor and the defendant is not the victim's parent; s.
794.011(2), (3), (4), (5), or (8); s.
794.05; s. 796.03; s.
800.04; s.
825.1025. s.
827.071; s.
847.0133; s.
847.0135; or s.
847.0145, or a violation of a similar law of another jurisdiction[.] Thus, to meet the criteria under section
775.21(4)(a)1.a., Bouchillon would have to have been convicted of a violation of section
800.04 which was "a capital, life or first degree felony." Here, Bouchillon was convicted of a second degree felony violation of section
800.04. §
800.04(4). Therefore, he does not meet the sexual predator criteria under section
775.21(4)(a)1.a. In order to meet the criteria under section
775.21(4)(a)1.b., Bouchillon would have to have been previously convicted of a violation of section
800.04 "or a violation of a similar law of another jurisdiction and ......
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2012 WL 3235179, 2012 Fla. App. LEXIS 13363
...Section
794.0115, Florida Statutes, requires mandatory sentencing when a defendant qualifies as a DSFO. That statute states, in relevant part: (2) Any person who is convicted of a violation of s.
787.025(2)(c); s.
794.011 (2), (3), (4), (5), or (8); s.
800.04(4) or (5); 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: [[Image here]] (e) Has previously been convicted of a violation of s.
787.025(2)(c); s.
794.011(2), (3), (4), (5), or (8); s.
800.04(4) or (5); s....
...Therefore, he would qualify as a DSFO under section
794.0115(2) if he met the other requirements of the statute. Durant does not have a previous conviction for violations of any of the statutes set forth in section
794.0115(2)(e). He was, however, convicted of violating section
800.04(1), Florida Statutes (1995), which provides that a person who “handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner ... without committing the crime of sexual battery, commits a felony of the second degree.” §
800.04(1), Fla. Stat. (1995). The State argues that section
800.04(1), Florida Statutes (1995), has similar elements to sections
800.04(4) and (5), Florida Statutes, which are listed in section
794.0115(2)(e). It, therefore, contends Durant would qualify as a DSFO under section
794.0115(2)(e). We disagree. Sections
800.04(4) and (5) read as follows: (4) Lewd or lascivious battery....
...s than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation. (emphasis in original). After reviewing each of these crimes, we do not believe that the 1995 version of section
800.04(1) is similar in elements to sections
800.04(4) and (5). In particular, section
800.04(4) requires evidence of sexual activity, 2 whereas there is no sexual activity requirement contained in section
800.04(1), Florida Statutes (1995). Likewise, section
800.04(5) requires evidence that the perpetrator intentionally touched “the breasts, genitals, genital area, or buttocks, or the clothing covering them” of the minor. Section
800.04(1), Florida Statutes (1995), contains no such requirement. Although section
800.04(5) and the 1995 version of section
800.04(1) contain other elements that are the same, we conclude they do not have similar elements for purposes of section
794.0115(2)(e). See Fike v. State,
68 So.3d 847 (Fla. 5th DCA 2011) (reversing designation as sexual predator where prior conviction in Michigan was not similar to lewd or lascivious offenses; Michigan offense did not include age requirement). Further, section
800.04(1), Florida Statutes (1995), shares similar elements with section 800:04(6), Florida Statutes, which is not a qualifying felony in the DSFO statute. See
794.0115(2)(e), Fla. Stat.; Abrams v. State,
971 So.2d 1033, 1037 (Fla. 4th DCA 2008) (reversing DSFO sentence because Abrams’ conviction for violating section
800.04(6) does not *672 qualify him for sentencing pursuant to the DSFO statute)....
...The jury found Durant was eighteen years of age or older at the time of the offense. . "Sexual activity” 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.” § 800.04(l)(a), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 4960, 2006 WL 862272
GROSS, J. The issue we address in this case is whether appellant’s convictions of lewd and lascivious battery under section 800.04(4) and lewd or lascivious molestation, in violation of section 800.04(5)(c)(2), Florida Statutes (2004), violate double jeopardy protections....
...Appellant moved the victim’s hand up and down on his penis, until he ejaculated. This case is controlled by Paul v. State,
912 So.2d 8 (Fla. 4th DCA 2005), rev. granted,
913 So.2d 598 (Fla.2005). In Paul , the defendant was convicted of lewd and lascivious acts under section
800.04[ (5)-(7) ], “all arising from the same encounter.” Id....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2001 WL 328562
...§
775.082(1), Fla.Stat. (1995). The sentencing guidelines in effect when appellant committed the offenses expressly state that they do not apply to capital felonies. § 921.001(4)(b)2, Fla.Stat. (Supp.1994). The lewd act conviction is a second-degree felony. §
800.04, Fla.Stat....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 6233, 2014 WL 1696141
...We reverse and remand for further proceedings on ground one and affirm without comment on ground two. Mr. Pierce was convicted of lewd and lascivious battery that occurred in September 2001 (count one) and lewd and lascivious molestation that occurred in November 2001 (count two). See § 800.04(4), (5)(a), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 5973, 2010 WL 1726155
...lestation was a first degree felony; however, once the statute was enacted the crime of lewd molestation became a life felony subject to a penalty of life imprisonment or a term of not less than 25 years' imprisonment followed by life probation. See § 800.04(5)(b), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 5015, 2000 WL 502662
...llow visitation of the children of respondent' Cesar Lupian Perez [“Perez”], while Perez is incarcerated. Perez was convicted of two counts of attempted lewd and lascivious act in the presence of a child under the age of sixteen, in violation of section 800.04, Florida Statutes (1997).' Perez has failed to respond to this court’s show cause order of February 24, 2000....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...But he later said he it was the front of his hand and her
thigh, near her private area.
After the State presented this and other evidence at trial,
Lara-Castillo moved for a judgment of acquittal, arguing there was
no evidence he touched the child in a “lewd or lascivious manner.”
See § 800.04(5)(a), Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 2016 WL 1460708
...older, victim 18 or
older)
- 16 -
Sexual battery
794.011(5)(c) 11.4
(Defendant younger
than 18, victim 12 or
older)
Lewd or lascivious
800.04(4)(a)1. 11.10(a)
battery (Victim 12 or
older but less than 16)
Lewd or lascivious
800.04(4)(a)2.* 11.10(b)*
battery (Victim less
than 16)*
Battery
784.03(1)(a)1....
...parties may agree to pare down the necessary lesser-included offenses.
*It is unclear whether the “encouraging, forcing, or enticing any person less
than 16 years of age to engage in … any other act involving sexual activity” part of
Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla....
...Sexual battery
794.011(5)(b) 11.4
(Defendant 18 or
older, victim 18 or
older)
Sexual battery
794.011(5)(c) 11.4
(Defendant younger
than 18, victim 12 or
older)
Lewd or lascivious
800.04(4)(a)1. 11.10(a)
battery (Victim 12 or
older but less than 16)
Lewd or lascivious
800.04(4)(a)2....
...11.10(b)*
battery (Victim less *
than 16)*
Battery
784.03(1)(a)1. 8.3
Sexual battery
794.011(4) 11.3
Attempt
777.04(1) 5.1
Lewd or lascivious
800.04(4) 11.10 or
battery 11.10(a)
Aggravated battery
784.045(1)(a) 8.4
Felony battery
784.041(1) 8.5
Aggravated a...
...Stat., according to
§
794.011(6)(a), Fla. Stat.
*It is unclear whether the “encouraging, forcing, or enticing any person less
than 16 years of age to engage in … any other act involving sexual activity” part of
Lewd or Lascivious Battery in §
800.04(4)(a)2., Fla....
...)(c) 11.3
specified
circumstances
(Defendant younger
than 18, victim 12 or
older)
Sexual battery*
794.011(5)(a) 11.4*
*
Lewd or lascivious
800.04(4)(a)1. 11.10(a)
battery (Victim 12 or
older but less than 16)
Lewd or lascivious
800.04(4)(a)2. 11.10(b)*
battery (Victim less ** *
than 16)**
Battery
784.03(1)(a)1. 8.3
Lewd or lascivious
800.04(4) 11.10 or
battery 11.10(a)
Attempt
777.04(1) 5.1
Aggravated battery
784.045(1) 8.4...
...Stat., respectively, pursuant
to §§
794.011(6)(b) - (6)(e), Fla. Stat.
**It is unclear whether the “encouraging, forcing, or enticing any person less
than 16 years of age to engage in … any other act involving sexual activity” part of
Lewd or Lascivious Battery in §
800.04(4)(a)2., Fla....
...NO.
Sexual battery
794.011(5)(b) 11.4
(Defendant 18 or
older, victim 18 or
older)
Sexual battery
794.011(5)(c) 11.4
(Defendant younger
than 18, victim 12 or
older)
Lewd or lascivious
800.04(4)(a)1. 11.10(a)
battery (Victim 12 or
older but less than 16)
Lewd or lascivious
800.04(4)(a)2....
...parties may agree to pare down the necessary lesser-included offenses.
*It is unclear whether the “encouraging, forcing, or enticing any person less
than 16 years of age to engage in … any other act involving sexual activity” part of
Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla....
...SOLICITATION OF A CHILD TO ENGAGE IN AN ACT THAT
CONSTITUTES SEXUAL BATTERY BY PERSON IN FAMILIAL
OR CUSTODIAL AUTHORITY —
794.011(8)(a)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
Lewd or lascivious
800.04(4)(a)2....
...Sexual battery
794.011(5)(b) 11.4
(Defendant 18 or
older, victim 18 or
older)
Sexual battery
794.011(5)(c) 11.4
(Defendant younger
than 18, victim 12 or
older)
Lewd or lascivious
800.04(4)(a)1. 11.10(a)
battery (Victim 12 or
older but younger than
16)
Lewd or lascivious
800.04(4)(a)2. 11.10(b)*
battery (Victim *
younger than 16)*
Battery
784.03(1)(a)1. 8.3
Attempt
777.04(1) 5.1
Lewd or lascivious
800.04(4) 11.10 or
battery 11.10(a)
Aggravated battery
784.045(1)(a) 8.4
Felony battery
784.041(1) 8.5
Aggravated as...
...parties may agree to pare down the necessary lesser-included offenses.
*It is unclear whether the “encouraging, forcing, or enticing any person less
than 16 years of age to engage in … any other act involving sexual activity” part of
Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla....
...older but younger than
18)
Sexual battery
794.011(5)(b) 11.4
(Defendant 18 or
older, victim 18 or
older)
Sexual battery
794.011(5)(c) 11.4
(Defendant younger
than 18, victim 12 or
older)
Lewd or lascivious
800.04(4)(a)1. 11.10(a)
battery (Victim 12 or
older but less than 16)
- 46 -
Lewd or lascivious
800.04(4)(a)2.* 11.10(b)*
battery (Victim less
than 16)*
Battery
784.03(1)(a)1....
...parties may agree to pare down the necessary lesser-included offenses.
*It is unclear whether the “encouraging, forcing, or enticing any person less
than 16 years of age to engage in … any other act involving sexual activity” part of
Lewd or Lascivious Battery in § 800.04(4)(a)2., Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 13193, 2009 WL 2871137
...heet when deciding a sentence and applying the "would-have-been-imposed" standard to rule 3.850 motions alleging scoresheet error). Burrow points out that the written judgment, circuit court minutes, and other records show a conviction for violating section 800.04(5)(c)(2), Florida Statutes (2001), a second-degree felony, which should have been scored as a level 7 offense on his scoresheet. He asserts, however, that the scoresheet improperly refers to a conviction for violating section 800.04(5)(b), a first-degree felony, which was scored as a level 9 offense....
CopyPublished | Florida 2nd District Court of Appeal | 2005 WL 2172240
...lee. WALLACE, Judge. In this guidelines sentencing case, Curtis Harold Knarich challenges the fifteen-year upward departure sentence imposed on him after his conviction for handling and fondling a child under the age of sixteen years, a violation of section 800.04(1), Florida Statutes (1997)....
...e. This circumstance has led to complications in sentencing Knarich for the crime that he committed more than eight years ago. After a jury trial, Knarich was convicted of handling and fondling a child under the age of sixteen years, in violation of section 800.04(1), a second-degree felony....
...R.Crim. P. 3.703. [3] The pertinent elements of Knarich's 1982 to 1984 military offenses involved offenses against a child under the age of sixteen years. By contrast, the comparable lewd and lascivious statute in effect in Florida at the same time, section 800.04, required that the child be under the age of fourteen years....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Laws § 11-37-8.1 (under 14); R.I. Gen.
Laws § 11-37-6 (14 to 16 if assailant over 18). And all three States
also criminalize sexually touching children’s genitals or digitally
penetrating them. Ala. Code § 13A-6-67(a)(2) (under 16); Fla. Stat.
§ 800.04(5) (under 16); R.I....
CopyPublished | Florida 1st District Court of Appeal | 2008 WL 4067304
...Bill McCollum, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Bernard Miller appeals his convictions on two counts of lewd or lascivious battery on a person twelve years of age or older, but less than sixteen years old, in violation of section 800.04(4)(a), Florida Statutes (2005)....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 11286, 1998 WL 559616
...He was sentenced on February 28, 1997, for aggravated assault, a violation of section
784.021(l)(b), Florida Statutes, based on a plea agreement. Originally, the information filed against him charged he had committed a lewd or lascivious assault upon a child, in violation of section
800.04(1), over a three-year time span (1990 through 1993)....
CopyPublished | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 14532
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 794.01l(2)(b), Florida Statutes (2008); lewd or lascivious molestation, in violation of section
800.04(5)(c)l, 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(l)(b), Florida Statutes (2008)....
...ny 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)l. where the court finds molestation involving unclothed genitals; or (IV) Section
800.04(5)(d) where the court finds the use of force or coercion and unclothed genitals....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 12916, 2010 WL 3446663
...Price appealed, and this Court reversed and remanded for a new trial. Price v. State,
627 So.2d 64 (Fla. 5th DCA 1993). On remand, in February of 1994, Price entered a plea of nolo contendere to two counts of the lesser included offense of lewd and lascivious assault upon a child in violation of section
800.04, Florida Statutes....
...been: 1. Convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or analogous offenses in another jurisdiction: s.
787.025, chapter 794, s. 796.03, s.
800.04, s....
CopyPublished | Florida 4th District Court of Appeal | 2010 WL 3766818
...e court issued on good cause shown." Before trial and after J.S.'s first deposition of the victim, the State amended the petition for delinquency to reflect a change in its charges from lewd and lascivious conduct to lewd and lascivious molestation. Section 800.04(6)(a), Florida Statutes states that a person who "[i]ntentionally touches a person under 16 years of age in *911 a lewd or lascivious manner" or solicits a person to "commit a lewd or lascivious act" commits "lewd or lascivious conduct." Section 800.04(5)(a), Florida Statutes states that "[a] person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age ......
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 16404, 2006 WL 2785076
...In 1999, he pled guilty to committing a lewd and lascivious act in the presence of a child under 16, and one count of attempted commission of a lewd and lascivious act in the presence of a child under 16, after being examined by mental health experts to assure that he could lawfully enter such a plea. See § 800.04, Fla....
CopyPublished | Florida 5th District Court of Appeal
...Ashley Moody, Attorney General, Tallahassee, and Roberts J.
Bradford, Jr., Assistant Attorney General, Daytona Beach, for
Appellee.
September 27, 2024
PER CURIAM.
Juan Jose Rodriguez appeals his convictions for three
violations of section 800.04(5)(b), Florida Statutes, and his
sentence to life in prison with twenty-five-year mandatory
minimum provisions on each violation....
...See Prentice v. State,
319 So. 3d 57, 60−62 (Fla. 4th DCA
2021) (determining that where the record leads to the firm
conclusion that the trial court intended to impose a sentence of life
in prison instead of a term-of-years sentence for the conviction
under section
800.04(5)(b), remand is appropriate for the
ministerial act of removing the erroneous inclusion of the twenty-
five-year mandatory minimum provision in the life sentence
without the defendant’s attendance).
AFFIRMED and REMANDED with...
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 4272109
...4)(a).
Section
794.011(1)(h), Florida Statutes (2014), 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(4)(a)(1),
Florida Statutes (2014), defines lewd or lascivious battery as "[e]ngaging in sexual
activity with a person 12 years of age or older but less than 16 years of age." The
definition of "[s]exual activity" in section
800.04(1)(a) is identical to the definition of
sexual battery in section
794.011(1)(h)....
...included offense of sexual battery and explaining 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)")....
CopyPublished | Florida 1st District Court of Appeal | 2006 WL 2714277
...State,
789 So.2d 1032, 1036 (Fla. 1st DCA 2001)(en banc), and Smith v. State,
632 So.2d 644 (Fla. 1st DCA 1994). We find the state's reliance on Morris and Smith to be misplaced. These cases did not involve prosecutions under section
827.03. Smith involved a conviction under section
800.04(1), Florida Statutes (Supp. 1990), which proscribed handling, fondling *1231 or assaulting a child under sixteen years old in a lewd, lascivious, or indecent manner. Morris involved section
800.04(4), Florida Statutes (1997), which proscribed knowingly committing a lascivious act in the presence of a child under sixteen. [4] In the case before us, the state has not sought to prosecute appellant under section
800.04. In Smith, we affirmed two of Smith's convictions for attempted assault under section
800.04(1), because we concluded that the nature of his language and conduct fell within the proscription of section
800.04(1)....
...However, at the same time, we reversed two of Smith's convictions based upon his statement "[h]ey, girls, show me your pussy," because "the appellant's request to the girls to expose themselves. . . did not evince the specific intent to handle, fondle, or assault the girls required under subsection (1) [of section
800.04]." Id. In Morris, we affirmed a conviction under section
800.04(4), based upon the defendant "telling a child that he desired to engage her in oral sex, using language which described this in a graphic manner." Morris,
789 So.2d at 1033....
...We reasoned that, even though the defendant's act involved only speech, "the statutory reference to a prohibited `act' is commonly understood as encompassing conduct or behavior which involves only verbal statements or speech." Id. Because Morris' comments constituted lewd or lascivious solicitation, see, e.g., section 800.04(6)(a)2, Florida Statutes (2004), however, the factual circumstances of Morris are substantially dissimilar from the case before us....
...ermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson,
461 U.S. 352, 358,
103 S.Ct. 1855,
75 L.Ed.2d 903 (1983). [4] Section
800.04 was substantially revised by chapter 99-201, § 6, at 1187-89, Laws of Florida.
CopyPublished | District Court of Appeal of Florida
lascivious (i.e., unchaste or sensual) manner. See §
800.04(5)(a), Fla. Stat.; Lara– Castillo v. State, 244
CopyPublished | Florida 5th District Court of Appeal
...Tallahassee, and Kristen L. Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.
LAMBERT, J.
James Albert Taylor appeals his conviction for lewd or lascivious molestation of
T.F., a child less than twelve years of age, in violation of section 800.04(5)(a)-(b), Florida
Statutes (2013). Taylor raises three issues on appeal. We find no merit to Taylor’s
arguments that section 800.04(5)(a) is either unconstitutionally vague or overbroad and
that certain comments made by the State in its closing arguments require reversal, and
we do not address them any further....
...2013, and November 6, 2013, Taylor unlawfully and intentionally touched T.F., a person
less than twelve years of age, in a lewd and lascivious manner, on the breast, genitals,
genital area, or buttocks, or the clothing covering them, contrary to section
800.04(5)(a)-(b), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
...r upon
L.A., a child under sixteen years of age, by Touching in a
Lewd or Lascivious Manner the Genitals, Genital Area,
or Buttocks of L.A. or Enticed the Child to so Touch
Him, contrary to Section 800.04(1), Florida Statutes.
The State timely filed a Notice of Evidence of Other Crimes stating it intended to
introduce evidence showing that during the same time period, Harrelson committed
similar acts on the same victim in Gulf County...
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 15653
...The State appeals an order dismissing the delinquency petition charging D.A. with lewd and lascivious molestation. The trial judge dismissed the petition pursuant to the juvenile speedy trial rule, 1 because the State amended the petition during the recapture period to correct an erroneous citation to section 800.04(5)(c)(2), Florida Statutes (which applies to a defendant 18 years of age or older). The amended petition correctly charged D.A. under section 800.04(5)(d), which applies to a defendant under the age of 18....
...State,
846 So.2d 565 (Fla. 4th DCA 2003). The Fourth District held that the age of the defendant was not an element of the crime. In so holding, the Court reasoned that because “the structure and language of the statute in Jesus is eompellingly analogous to section
800.04(5) governing lewd or lascivious molestation,” the reasoning and holding of Jesus should be applied....
...Again, we would welcome a reversal. Consequently, we certify the following as questions of great public importance: 1. IN LIGHT OF THE RULING IN GLOVER v. STATE,
863 So.2d 236 (Fla.2008), IS THE AGE OF THE OFFENDER AN ELEMENT OF THE OFFENSE OF LEWD OR LASCIVIOUS OFFENSES UNDER SECTION
800.04, FLORIDA STATUTES? 2....
CopyPublished | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 9054, 1994 WL 513552
...g as illegal Kline’s probationary split sentences imposed following four convictions for lewd and lascivious assault on a minor. We agree that the sentences are illegal and reverse. Lewd and lascivious assault on a minor is a second degree felony. § 800.04, Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 14748, 2005 WL 2292257
...m was 12 years old at the time of the crime because her birth was in August 1990. He asserts these facts establish the crime was not committed on someone under the age of 12, which reduces the crime from a first degree to a second degree felony. See § 800.04(5)(b), (c)2., Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 11878, 2000 WL 1346570
...the conviction and sentence for attempted capital sexual battery as to count two of the information. Because there was sufficient evidence to support a conviction for the lesser included offense of a lewd and lascivious act upon a child contrary to section 800.04(1), Florida Statutes (1998), we direct the trial court to enter a conviction for that offense on remand....
CopyPublished | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 13879, 2005 WL 2105369
...se is less serious, the sexual offender can still be designated a sexual predator, if the offender also has prior felonies. See §
775.21(4)(a)l.b., Fla. Stat. (2000).”); Meyers v. State,
884 So.2d 219 (Fla. 2d DCA 2004) (holding that violation of section
800.04(4), Florida Statutes (2001) — a second-degree felony — -did not result in sexual predator designation when defendant had no prior violations)....
CopyPublished | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 13870, 2005 WL 2105954
...Appellant was charged in a three-count amended information with (1) sexual battery upon a person 12 or older, but less than 18, by a person in a position of familial or custodial authority in violation of section
794.011(8)(b), Florida Statutes (2000); (2) lewd or lascivious battery in violation of section
800.04(4)(a), Florida Statutes (2000); and (3) child abuse by impregnating a child younger than 16 in violation of section
827.04(3), Florida Statutes (2000)....
CopyPublished | Florida 2nd District Court of Appeal | 2013 Fla. App. LEXIS 14807, 2013 WL 5226515
...less than twelve years old. The jury was instructed that before it could find Mr. Phillips guilty of committing lewd or lascivious molestation, it was required to find that the victim was less than sixteen years old, a second-degree felony. *102 See § 800.04(5)(c)(2), Fla. Stat. (2004). However, the judgment reflects that he was found guilty of a first-degree felony. § 800.04(5)(b)....
...(2004), but it failed to correct the judgment. Mr. Phillips argues, and the State correctly concedes, that the judgment should be remanded for the trial court to correct the judgment to reflect that the lewd or lascivious molestation conviction was a second-degree felony. See § 800.04(5)(c)(2)....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 5224914, 2013 Fla. App. LEXIS 14797
...775.082, s.
775.083, or s.
775.084. The “monetary value of any violation of this subsection” is an element of the crime. Cf. Insko v. State,
969 So.2d 992 (Fla.2007) (holding age of defendant is element of crime of lewd and lascivious molestation under section
800.04(6), Florida Statutes (2001), analogizing to value as element of third-degree grand theft under section
812.014, Florida Statutes (2001))....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 9726, 1996 WL 523182
...The record reflects that appellant was charged with a violation of the Racketeer Influenced and Corrupt Organization Act; two counts of “lewd and lascivious sexual battery” — i.e., sexual battery upon a child younger than age 16, in violation of section
800.04(2), Florida Statutes (1989); and one count of “solicitation to commit lewd and lascivious sexual battery” — i.e., solicitation to commit sexual battery upon a child younger than age 16, in violation of sections
777.04(2) and
800.04(2), Florida Statutes (1989)....
...ted by law, to wit: lewd and lascivious sexual battery, and in the course of such solicitation, did encourage, hire or request [JANE DOE] to uMawfully commit lewd and lascivious sexual battery, in violation of Section [sic]
777.04(2),
777.04(4), and
800.04, Florida Statutes....
...It reads: Whoever solicits another to commit an offense proMbited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct wMch would constitute such offense or an attempt to commit such offense commits the offense of crimmal solicitation.... Section 800.04, Florida Statutes (1989), is titled “Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery.” Subsection (2) thereof proMbits sexual battery upon a child younger than age 16....
CopyPublished | Florida 5th District Court of Appeal
...counsel failed to convey a plea offer. Because he failed to carry
that burden, we reverse.
In 2001, a jury convicted Downs of forcing or enticing a child
to commit a lewd, lascivious, or indecent act and of committing a
lewd or lascivious act in the presence of a child, see § 800.04(2), (4),
Fla....
CopyPublished | Florida 2nd District Court of Appeal
...Gen., Tampa, for appellee. BOARDMAN, Judge. Appellant, Patsy Wolf, was charged in an information with unlawfully handling and fondling a female child under the age of fourteen years in a lewd and lascivious manner in violation of Florida Statutes, Section 800.04, F.S.A....
...One of the points raised on this appeal relates to the trial court's failure to comply with the provisions of Chapter 801, Florida Statutes, F.S.A., The Child Molester Act. Florida Statutes, Section 801.041, F.S.A., provides that one convicted under Florida Statutes, Section 800.04, F.S.A., is subject to the provisions of Chapter 801, supra, and, this court so held in Baker v....
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 11695, 2000 WL 1283814
...once the instruction was given. See Lawson v. State,
552 So.2d 257 (Fla. 4th DCA 1989). POLEN, FARMER and SHAHOOD, JJ., concur. . Appellant was convicted 'of committing a lewd and lascivious act in the presence of a child, his 12-year old daughter, section
800.04(4), Florida Statutes (1997).
CopyPublished | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 2172, 1989 Fla. App. LEXIS 5130, 1989 WL 106763
...Everyone who breaks a criminal law violates this trust. Being naturally innocent in sexual matters, all children are especially vulnerable to the physical, mental, and emotional harm that can result from exposure to gross adult lewd acts. To protect children from that harm is the very purpose for section 800.04, Florida Statutes, which prohibits lewd acts on, or in the presence of, children....
...Because it is only a difference in degree that all children are vulnerable to being victimized by lewd acts and because all who violate this statute also violate some degree of trust, departure from the recommended guidelines sentence for the basic offense of lewd acts on or in the presence of a child (section 800.04, Florida Statutes), should not be based on these two particular factors....
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 4859090, 2013 Fla. App. LEXIS 14586
...2686 ,
120 L.Ed.2d 520 (1992), and Barker v. Wingo,
407 U.S. 514 ,
92 S.Ct. 2182 ,
83 L.Ed.2d 101 (1972), we agree and reverse. I. Background On March 6, 2000, the State filed an information charging Niles with two counts of lewd or lascivious molestation in violation of section
800.04(5)(b), Florida Statutes, for conduct allegedly occurring between January 15 and 18, 2000, in Nassau County....
CopyPublished | Florida 1st District Court of Appeal
or buttocks, or the clothing covering them.” §
800.04(5)(a), Fla. Stat. (2020). White claims the State
CopyPublished | Florida 5th District Court of Appeal | 1998 Fla. App. LEXIS 11532, 1998 WL 601148
...(Supp.1996). Both parties agree this matter should be remanded to the trial court for a hearing on whether Fields meets the sexual predator criteria of the applicable statute. AFFIRMED in part; REMANDED. GRIFFIN, C.J., and DAUKSCH, JJ„ concur. . § 800.04(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 13422, 2010 WL 3515473
...idnap a child under the age of thirteen when, in the course of committing the offense, the defendant commits: 3. Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition in violation of s. 800.04....
...On remand, the trial court shall vacate Bishop’s conviction for lewd or lascivious conduct. AFFIRMED, in part; REVERSED, in part; REMANDED. JACOBUS, J., concur. COHEN, J., concurs and concurs specially with opinion. . §
787.01(3)(a), Fla. Stat. (2006). . §
800.04(5), Fla. Stat. (2006). . §
800.04(6), Fla. Stat. (2006). . §
800.04(7), Fla....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 2054, 1988 Fla. App. LEXIS 3884, 1988 WL 89709
...A petition for delinquency charged the defendant child with unlawfully handling, fondling, or making an assault in a lewd and lascivious manner on a five year old child. This charge is under section 800.-04(1), Florida Statutes. The charging document does not charge defendant under section 800.04(3), which prohibits a knowing, lewd and lascivious act in the presence of a child....
...Three witnesses testified at trial. The victim and her brother testified on direct knowledge that the defendant dropped his trousers in the presence of the victim and grabbed for the victim’s dress. This would constitute a lewd act in the presence of a child under section 800.04(3), but not a lewd and unlawful handling, fondling or touching under section 800.04(3)....
...1 The victim’s mother did not personally witness the event but testified that seven months after the incident, the victim reported to her that the defendant touched the victim’s vagina with his finger. Therefore, the only evidence before the court relating to the offense charged (§ 800.04(1), FIa.Stat.) was the testimony of the victim's mother, which was hearsay and inadmissible unless it falls within one of the established exceptions to the hearsay rule....
...itement causing the statement was the result of hearing a sermon at church and not a result of the incident itself. Because the charge is that the defendant touched, handled, fondled or made an assault in a lewd and lascivious manner upon the child (§ 800.04(1), Fla.Stat.), and the only evidence to support that charge was the hearsay testimony of the mother, which was inadmissible, the finding of delinquency must be, and it is REVERSED. SHARP, C.J., and COBB, J., concur. . Many statutes such as section 800.04(1) and section 800.04(3) describe, define, and prohibit two discrete criminal offenses and it is very important that the State charge the crime supported by the evidence to be presented at trial. Unfortunately the State did not, at trial, have the child victim testify about the touching of its vagina. It is also unfortunate the State did not charge in two counts, with one count under section 800.04(3) based on the trouser dropping lewd act in the presence of a child....
CopyPublished | Supreme Court of Florida | 22 Fla. L. Weekly Supp. 630, 1997 Fla. LEXIS 1521, 1997 WL 619662
...We have for review Horton v. State,
684 So.2d 257 (Fla. 3d DCA 1996), based on conflict with Francois v. State,
695 So.2d 695 (Fla.1997). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Larry Horton pled guilty to a lewd and lascivious act in violation of section
800.04, Florida Statutes (1985)....
CopyPublished | Supreme Court of Florida | 2015 WL 5853925
...offense.
-8-
Definitions.
The words “lewd” and “lascivious” mean the same thing: and mean a
wicked, lustful, unchaste, licentious, or sensual intent on the part of the person
doing an act.
§800.04(1)(a), Fla....
...on another or receiving such harm oneself.
§
847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between
a person and an animal involving the sex organ of the one and the mouth,
anus, or vagina of the other.
§
800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§
800.04(3), Fla....
...Attempt
777.04(1) 5.1
Comment
This instruction was adopted in 2008 [
998 So. 2d 1138] and amended in
2015. For offenses occurring prior to October 1, 2008, refer to section
800.04(7)(b), Florida Statutes (2007).
11.10(g) LEWD OR LASCIVIOUS EXHIBITION BY A DETAINEE
IN THE PRESENCE OF AN EMPLOYEE OF A FACILITY
§
800.09, Fla....
...[The term also includes any person who is a parole examiner
with the Parole Commission.]
The words “lewd” and “lascivious” mean the same thing: a wicked,
lustful, unchaste, licentious, or sensual intent on the part of the person doing
an act.
§ 800.04(1)(a), Fla....
...on another or receiving such harm oneself.
§
847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§
800.04(1)(d), Fla....
...committed or attempted or a person who has reported these acts to a law
enforcement officer.
See State v. Werner,
609 So.2d 585 (Fla. 1992).
“In the presence of” means that a victim saw, heard, or otherwise
sensed that the act was taking place.
§
800.04(2), Fla....
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 21244
of lewd, lascivious or indecent assault under §
800.04, Florida Statutes (1979), which offense the trial
CopyPublished | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 559, 2010 Fla. LEXIS 1641, 35 Fla. L. Weekly Fed. S 559
...the public. *44 Lesser Included Offenses [[Image here]] Comment This instruction was adopted in 1981 and was amended in 1997 [
697 So.2d 84 ] and 2010. 11.10 LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY §
800.04, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 13043, 2000 WL 1476580
...rcerated.” Thus, imposition of the six-year salutory maximum is authorized for Quiles’ conviction of a lewd and lascivious act in the presence of a child, a second-degree felony punishable by a maximum term of fifteen years’ incarceration. See § 800.04, Fla....
CopyPublished | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 2104, 1986 Fla. App. LEXIS 9948
...nd remand the cause to the trial court to re-sentence Powell within the recommended range provided by the guidelines. Williams . ERVIN and BARFIELD, JJ., concur. . § 794.01 l(4)(b), Fla.Stat. (Supp.1984). . §
787.01(l)(a), Fla.Stat. (Supp.1984). . §
800.04, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 9483, 1994 WL 534774
...the testifying witness, shall be admitted only after its reliability has been tested in accordance with section
90.803(23). Reversed and remanded for a new trial. THREADGILL and LAZZARA, JJ., concur. . Violations of §
784.03, Fla.Stat. (1991), and §
800.04(3), Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 5814005, 2013 Fla. App. LEXIS 17224
...3d DCA 1983), overruled on other grounds by State v. Lanier,
464 So.2d 1192 (Fla.1985). There, this court determined whether consensual penetration of a twelve-year-old girl’s vagina by the penis of an adult man constituted “handling” and “fondling” as proscribed by section
800.04 of the Florida Statutes (1981)....
...ot in “handling” or “fondling” her, this court stated: The information herein charged the defendant with the handling and fondling by engaging in sexual intercourse. Such an allegation does not, in our view, set forth a crime contemplated by Section 800.04....
...“Sexual intercourse,” on the other hand, “means actual contact of the sexual organs” of two persons and penetration of the body of another. Williams v. State,
92 Fla. 125, 127 ,
109 So. 305, 306 (1926) (citation omitted). Since the legislature specifically used words of distinct and clear meaning in Section
800.04, the courts “may not invade the province of the legislature and add words which change the plain meaning of the statute.” Therefore, reading “handle” or “fondle” as the trial court did in this case to include sexual intercourse is erroneous....
...rst degree misdemeanor. See Ch. 97-37, § 2, at 222, Laws of Fla; §
384.34(1), (5) Fla. Stat. (1997). . At the time, the term "venereal diseases” was defined as including only syphilis, gonorrhea and chancroid. See § 384.01, Fla. Stat. (1985). . Section
800.04 of the Florida Statutes (1981) at that time provided: Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or l...
CopyPublished | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 16785, 2008 WL 4722762
...Lewd and lascivious molestation is the intentional touching of “the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forcing] or entic[ing] a person under 16 years of age to so touch the perpetrator.” § 800.04(5)(a), Fla....
...We reverse the imposition of separate sentences for sexual battery and remand for the trial court to eliminate the separate punishment for one of the two sexual battery counts. Reversed. STONE and TAYLOR, JJ„ concur. . Blockburger v. United States,
284 U.S. 299 ,
52 S.Ct. 180 ,
76 L.Ed. 306 (1932). . §
800.04, Fla. Stat. (2007). The separate offenses were: (1) intentionally touched the victim’s genital area or the clothing covering it, contrary to section
800.04(5), Florida Statutes (1999); (2) intentionally touched the victim in a lewd or lascivious manner by kissing the victim’s neck, contrary to section
800.04(6), Florida Statutes (1999); (3) intentionally touched the victim in a lewd or lascivious manner by rubbing his penis on the victim's stomach area, contrary to section
800.04(6), Florida Statutes (1999); and (4) intentionally exposed his genitals in a lewd or lascivious manner in the presence of the victim, contrary to section
800.04(7), Florida Statutes (1999)....
CopyPublished | Florida 1st District Court of Appeal | 2014 Fla. App. LEXIS 17461, 2014 WL 5420656
...rial court has discretion to impose a sentence of less than life in prison. §§
794.011(2)(b),
775.082(3)(a)3., Fla. Stat. (2011). A lewd or lascivious molestation committed against a victim younger than 12 by a person 18 or older is a life felony. §
800.04(5)(b), Fla. Stat. (2011). However, a lewd or lascivious molestation committed against a person younger than 12 by a person under the age of 18 is a second-degree felony, for which the penalty may not exceed fifteen years in prison. §§
800.04(5)(c)l,
775.082(3)(c), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1999 Fla. App. LEXIS 14215, 1999 WL 974123
FARMER, J. Defendant argues that the state’s information charged him only with violations under subsection (1), (3) and (4) of section 800.04 but that the trial judge instructed on—and the jury found him guilty of—a violation under subsection (2)....
...We agree and reverse. The facts and circumstances regarding the issue relating to the crimes charged are identical to those in O’Bryan v. State,
692 So.2d 290 (Fla. 1st DCA 1997). As there, the information in this case charged violations under other parts of section
800.04 but said nothing that could reasonably be interpreted as an alleged violation of subsection (2), relating to simulated sexual intercourse....
CopyPublished | Florida 5th District Court of Appeal | 2007 Fla. App. LEXIS 16851, 2007 WL 3118865
...abducting, imprisoning, or restraining another person without authority and against her or his will.” Simple false imprisonment is a third degree felony. See §
787.02(2) Fla. Stat. None of the basic elements of false imprisonment are repeated in section
800.04(5)(c)2, which defines lewd and lascivious molestation....
...7 Therefore, Moore is not entitled to relief with respect to his third and final claim either. For the reasons set forth above, we AFFIRM the judgments and sentences in all respects. PALMER, C.J., and PLEUS, J., concur. . §
787.02(3)(a), Fla. Stat. (2005). . §
800.04(5)(c)2, Fla....
CopyPublished | Supreme Court of Florida | 25 Fla. L. Weekly Supp. 924, 2000 Fla. LEXIS 2041, 2000 WL 1587805
....victim/victim’s legal guardian/minor victim’s parent.... for disclosure of the child’s HIV test results FINDS that: The child, .... (name)...., .... is alleged by petition for delinquency to have committed/has been adjudicated delinquent for.... a sexual offense proscribed in chapter 794 or section 800.04, Florida Statutes, involving the transmission of body fluids from one person to another....
CopyPublished | Florida 1st District Court of Appeal
...Under a plea agreement with the State, Appellant Antony Melvin pled nolo
contendere to three counts of lewd and lascivious molestation of a child under 12
years of age by an adult. The crime is “a life felony, punishable as provided in s.
775.082(3)(a)4.” §
800.04(5)(b), Fla....
CopyPublished | Florida 4th District Court of Appeal
...occurred because he would go to jail.
After the State rested its case, Defendant moved for judgment of
acquittal on the two counts of lewd or lascivious molestation (counts three
and four). Defendant argued the State erred by charging him with lewd or
lascivious molestation under section 800.04(5), Florida Statutes (2019),
because section 800.04(5) prohibits defendant to victim contact, not victim
to co-victim contact. Defendant further argued that the State should have
charged him with lewd or lascivious battery under section 800.04(4),
Florida Statutes (2019), for the alleged conduct instead....
...The State’s position is that it relied on the principal theory under
section
777.011, Florida Statutes (2019), to convict Defendant of lewd or
lascivious molestation. Defendant counters that the principal theory is
inapplicable to this case because section
800.04(5)(a), Florida Statutes
(2019), specifically uses the word “perpetrator,” and Defendant did not
have a “co-perpetrator” commit the acts on his behalf.
The lewd or lascivious molestation statute provides:
A person who...
...manner the breasts, genitals, genital area, or buttocks, or the
clothing covering them, of a person less than 16 years of age,
or forces or entices a person under 16 years of age to so touch
the perpetrator, commits lewd or lascivious molestation.
§ 800.04(5)(a), Fla. Stat. “Thus, a person can violate [section 800.04(5)] in
two separate and distinct ways: 1) by touching the victim in the proscribed
manner, or 2) by forcing or enticing the victim to touch the person in the
proscribed manner.” Sanders v....
...2001)).
Defendant argues the trial court abused its discretion by reading the
State’s modified jury instructions for the two counts of lewd or lascivious
molestation because the modified instructions misstated the law. Similar
to his judgment of acquittal argument, Defendant asserts that under the
plain language of section
800.04(5) and section
777.011, the victims could
not be Defendant’s co-perpetrators and thus the victims could not be
identified as co-perpetrators in the jury instructions....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 10290, 1996 WL 556585
...Only at the request of the state did the defendant file an additional motion. Earlier in 1995, when the subsequent motion was filed, the statute had been amended; the new statute, section
943.059, Florida Statutes (1995), did not permit sealing of records when the defendant had been charged with a violation of section
800.04, Florida Statutes....
...Thus, the law in effect at the time his original motion was filed should govern, see State v. Greenberg,
564 So.2d 1176 (Fla. 3d DCA 1990), rev. denied,
576 So.2d 287 (Fla.1991), and the subsequent bar to sealing when the defendant has been charged with section
800.04 is not applicable in this case....
CopyPublished | Florida 2nd District Court of Appeal
...Phillips.
Although counsel allegedly told him that he was facing only a potential
sentence of fifteen years' imprisonment, Mr. Phillips, upon revocation of probation, was
actually facing thirty years for two second-degree felonies. See § 800.04(7)(a), Fla.
Stat. (2002) (making lewd or lascivious exhibition a second-degree felony punishable by
a maximum of fifteen years' imprisonment); § 800.04(6)(b) (same for lewd or lascivious
conduct); Alcorn v....
CopyPublished | Florida 3rd District Court of Appeal
...Count 1 was a restatement of Count 12 of the
original information, alleging sexual battery on a child between the ages of 12 and
16 based on acts committed between February 1 and 29, 2012.2 Count 2 was a new
charge alleging lewd or lascivious sexual battery on a child between the years of 12
and 16 (section 800.04(4)(a)1., Florida Statutes) based on acts occurring between
January 1, 2001, and December 31, 2007....
CopyPublished | Florida 1st District Court of Appeal | 1998 Fla. App. LEXIS 13164, 1998 WL 727306
...Accordingly Jones’ judgment and sentences for the lewd and lascivious assault are affirmed, his sentences for the 1990-91 offenses are vacated, and this cause is remanded for resentencing. AFFIRMED, in part; Sentence VACATED; REMANDED for Resentencing. GRIFFIN, C.J., and DAUKSCH, J., concur. . § 800.04(1), Fla....
CopyPublished | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 12843, 1998 WL 712782
...4th DCA 1998); Thompson v. State,
708 So.2d 289 (Fla. 4th DCA 1998), review granted, No. 92,435,
718 So.2d 171 (Fla. June 19,1998). Appellant contends, however, that because the sentence imposed on the lewd assault count, a violation of Florida Statute §
800.04(1) (1997), exceeds the statutory maximum of fifteen years for a second degree felony, Florida Statute §
775.082(3)(c) (1997), it is an illegal sentence reviewable at any time as fundamental error....
CopyPublished | Florida 5th District Court of Appeal | 2017 WL 4553902
...use of computer services or devices to solicit the consent of a parent or a person believed to be the parent, legal guardian, or custodian of a child to engage in unlawful sexual contact with the child. Lastly, Petitioner was charged with violating section 800.04(4)(a) for attempting, to engage in sexual activity with a person twelve years of age or older but less than sixteen years of age....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 13279, 2000 WL 1514711
..., but insufficient, affidavits pursuant to Florida Rule of Civil Procedure 1.510(e). In its complaint for forfeiture, the Sheriffs Office alleged that, while sitting inside *451 his truck, Williams exposed himself to two young girls, in violation of section 800.04, Florida Statutes (1997), which proscribes lewd and lascivious acts in the presence of a child under sixteen....
CopyPublished | Florida 1st District Court of Appeal
...In Count III of the same
amended information, appellee was also charged with having committed lewd or
lascivious battery on February 1, 2012, by “unlawfully engage[ing] in sexual
activity with [the victim] . . . by penetrating her vagina with his penis or any other
object,” contrary to section 800.04(4)(a), Florida Statutes (2011)....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 10319, 1993 WL 405179
...Section
794.011(2), Florida Statutes (1987), makes it a life felony for a person under the age of 18 to commit sexual battery on a person under the age of 12. However, section
777.04(4)(b), Florida Statutes (1987), converts a life felony into a second-degree felony if the person is convicted of attempting a sexual battery. . §
800.04, Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 4518529
...battery, which is a life felony, see §
794.011, Fla. Stat. (2003), twenty years in prison
followed by ten years of probation for the attempted sexual battery, a first-degree felony,
see §
794.011, and fifteen years of probation for the lewd molestation, a second-degree
felony, see §
800.04, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 14612, 2002 WL 31269537
...Singletary,
595 So.2d 8 (Fla.1992)(habeas corpus is not a second appeal and cannot be used to, litigate or relitigate issues which could or should have been raised on direct appeal). AFFIRMED. PETERSON and PALMER, JJ„ concur. . §
782.04(2), Fla. Stat . § 794.01 l(4)(a), Fla. Stat. . §
800.04(4), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 16675
...ity control and probation in 2001. The trial court denied the claims as untimely, and we must affirm. Facts and Procedural History In 1997, Vega was charged with lewd and lascivious acts on a child (a girl then fourteen years of age) in violation of section 800.04, Florida Statutes (1996)....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 16670
...Because it
appears that despite two pro se attempts, the trial court has not exercised its
discretion to address the merits of Wromas’ petition, we reverse.
On November 7, 2000, Wromas pled guilty to lewd and lascivious battery on
a child twelve to sixteen years of age in violation of section 800.04(4), Florida
Statutes (1999)....
CopyPublished | Florida 4th District Court of Appeal
...4th DCA 2016); Dames v. State,
186 So.
3d 593, 595 (Fla. 4th DCA 2016); see also Mann v. State,
974 So. 2d 552
(Fla. 5th DCA 2008).
Here, Alexis entered an open plea to the offense of lewd or lascivious
battery, which does not require proof of penetration. §
800.04(4), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 16704, 2015 WL 6757638
PER CURIAM. We remand this case for the trial court to correct the judgment to reflect that Appellant, Brian Harrison Buchanan, was found guilty of violating both section 800.04(5)(a) and 800.04(5)(b), Florida Statutes (2013)....
CopyPublished | Florida 1st District Court of Appeal | 1992 Fla. App. LEXIS 11371, 1992 WL 317848
...In attacking his convictions he claims that the trial court erred in denying his motion to suppress post-arrest inculpatory statements because there was no probable cause for the arrest and in denying him a jury instruction on lewd and lascivious assault upon a child in violation of section 800.04, Florida Statutes (1987)....
CopyPublished | Florida 5th District Court of Appeal | 1998 WL 830660
...authority, a violation of section
794.011(8)(b). He is also charged with four counts of committing a lewd, lascivious or indecent act upon a child. In one of those counts, he allegedly forced or enticed the victim to masturbate him, in violation of section
800.04(2)....
CopyPublished | Florida 5th District Court of Appeal | 14 Fla. L. Weekly 2755, 1989 Fla. App. LEXIS 6689, 1989 WL 143450
...or reimposition of costs after proper notice and hearing. Camp v. State,
536 So.2d 369 (Fla. 5th DCA 1988); Morgan v. State,
527 So.2d 968 (Fla. 5th DCA 1988). Judgment and sentence AFFIRMED; costs QUASHED; REMANDED. COBB and GOSHORN, JJ., concur. . §
800.04, Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 1995 Fla. App. LEXIS 11572
...rial 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. . §
794.011(2), Fla.Stat. (1993). . §
800.04(1), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal
...elements of proof”).
We distinguish the Florida Supreme Court’s decision in State v.
Hernandez,
596 So. 2d 671 (Fla. 1992). There, the supreme court held
that a single lewd act, though seen by more than one child, was subject to
only one conviction under section
800.04(3), Florida Statutes (1987)....
...ce of
one or more children[.]” Id. (quoting Lifka v. State,
530 So. 2d 371, 373
n.1 (Fla. 1st DCA 1988)). The court explained: “The size of the audience
or the number of witnesses should not determine the number of allowable
convictions under subsection
800.04(3); rather, the number of distinct
lewd acts should be determinative.” Id....
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 16650, 2001 WL 1502899
...cable to behavior such as this by designing other statutory provisions within chapter 800 to cover it. Section
800.03 (exposure of sexual organs) prohibits exhibition and exposure of one’s sexual organs in public in a vulgar or indecent manner and section
800.04(7)(a)l (lewd or lascivious exhibition) specifically prohibits intentionally masturbating in the presence of a victim less than 16 years of age....
CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 653, 2015 Fla. LEXIS 2626, 2015 WL 7566535
...second- and third-degree felonies. See §
775.15(2)(b), Fla. Stat. (2001).2
1. The crimes involved in this review proceeding are three counts of lewd or
lascivious molestation of a person over the age of twelve and under the age of
sixteen in violation of section
800.04(5)(a), (c)2., Florida Statutes (2006); three
counts of lewd or lascivious exhibition in the presence of a person under the age of
sixteen in violation of section
800.04(7)(a), (c), Florida Statutes (2006); and two
counts of showing obscene material to a minor in violation of section
847.0133,
Florida Statutes (2005).
2....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2694, 1989 Fla. App. LEXIS 6705, 1989 WL 139117
...Defendant appeals his conviction and sentence pursuant to a guilty verdict in a jury trial. He was convicted of sexual battery in violation of section
794.011(2), Florida Statutes (1987), a capital felony, and of lewd, lascivious, indecent assault or act upon or in the presence of a child, in violation of section
800.04, Florida Statutes (1987), a second degree felony....
CopyPublished | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 17169, 2002 WL 31557171
...State,
766 So.2d 475 (Fla. 4th DCA 2000), rev. denied,
804 So.2d 329 (Fla.2001). Section
948.03(6), Florida Statutes, provides, in pertinent part: “The sentencing court may only impose a condition of supervision allowing an offender convicted of §
794.011, §
800.04, §
827.071, or §
847.0145, to reside in another state, if the order stipulates that it is contingent upon the approval of the receiving state interstate compact authority.” §
948.03(6), Fla....
CopyPublished | Florida 5th District Court of Appeal | 1998 Fla. App. LEXIS 14778, 1998 WL 821761
...rcourse with a child under sixteen and, because each child witnessed the sexual act being committed on the other, two counts of committing a lewd act in the presence of a child. He appeals contending that the commission of a sexual act on one child (section 800.04(3), Florida Statutes) cannot constitute the separate crime of committing a lewd and lascivious act in the presence of another child (section 800.04(4), Florida Statutes)....
...It was held in each case that the fact that there were multiple witnesses to the offense did not create multiple offenses. In our case, however, defendant was charged with committing two separate sex acts on a child prohibited by subsection (3) of section 800.04, each of which gave rise to a separate offense of lewd acts committed in the presence of a child under subsection (4) of the same statute....
CopyPublished | Florida 1st District Court of Appeal
...conviction for “any battery.”
Additionally, unlike the offense of aggravated battery at issue
in Warren, lewd or lascivious battery can be committed without
touching or striking another person against his or her
will. See § 800.04(1)(b), (4)(a)-(b)....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 11104, 1994 WL 637296
...r than a first-degree misdemeanor. Argument centered around whether the appellant’s Ohio conviction for gross sexual imposition, a fourth-degree felony in Ohio, equated with the Florida second-degree felony of lewd and lascivious act upon a child. § 800.04, Florida Statutes (1991). Section 800.04, Florida Statutes (1991), provides that it is a second-degree felony to commit certain sexually related acts in the presence of a child under 16 years of age....
...onsider the underlying facts behind the conviction. The state introduced undisputed evidence that the Ohio conviction was based on acts where appellant’s 14-year-old daughter was the victim, and argued that the Ohio crime is therefore analogous to section 800.04, Florida Statutes (1991)....
CopyPublished | Supreme Court of Florida
...‘sadomasochistic abuse’ and ‘sexual bestiality’ in §
847.001, Fla. Stat., that differ
from the statutory definitions in §
827.071, Fla. Stat. As of June 2018, there is no
case law that decides which definition applies for a violation of [§
800.04(7)(a), §
800.09, or §
825.1025, as applicable], Fla....
...Stat., the jury should be instructed with respect to §
743.01 et seq.
This instruction was adopted in 1998 [
723 So. 2d 123] and amended in 2015
[
163 So. 3d 478], and 2018.
11.10 LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN
THE PRESENCE OF CHILD; SEXUAL BATTERY
§
800.04, Fla. Stat.
Give only for those offenses committed before October 1, 1999.§
800.04,
Fla....
...At the time, (victim) was under the age of 16 years.
Definitions.
Give in all cases.
Neither the victim’s(victim’s) lack of chastity nor the victim’s(victim’s)
consent is a defense to the crime charged.
Give when pre-October 1, 1999 § 800.04(1), Fla....
...Stat., is charged.
As used in regard to this offense, the words “lewd,” “lascivious,” and
“indecent” mean the same thing:. They mean a wicked, lustful, unchaste,
licentious, or sensual intent on the part of the person doing an act.
Give when assault is charged under pre-October 1, 1999 § 800.04(1), Fla.
Stat.
An “assault” is an intentional, unlawful threat by word or act to do
violence to the person of another, coupled with an apparent ability to do so,
and doing some act which creates a well-founded fear in such other person
that such violence is imminent.
- 11 -
Give when pre-October 1, 1999 § 800.04(4), Fla....
...1992).
“In the presence of” means that (victim) saw, heard, or otherwise sensed
that the act was taking place.
Give if applicable.
“Union” means contact.
See State v. Werner,
609 So.2d 585 (Fla. 1992).
Give applicable definitions from §
847.001, Fla. Stat., when pre-October 1,
1999 §
800.04(2), Fla....
...s. Lanier v.
State,
443 So.2d 178 (Fla. 3d DCA 1983); Chapters 84–86, Laws of Florida.
Lesser Included Offenses
LEWD, LASCIVIOUS, OR INDECENT ASSAULT OR ACT UPON
OR IN PRESENCE OF CHILD — pre-October 1, 1999
800.04
CATEGORY ONE CATEGORY TWO FLA....
...Definitions. Give if applicable.
Lakey v. State,
113 So. 3d 90 (Fla. 5th DCA 2013).
- 13 -
“An object” includes a finger.
“Union” means contact.
Give if applicable.
§
800.04(1)(a), Fla. Stat.
However, any act done for bona fide medical purposes is not a lewd or
lascivious battery.
§
800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§
800.04(3), Fla....
...- 14 -
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS BATTERY (ENGAGING IN SEXUAL
ACTIVITY) — 800.04(4)(a)1
CATEGORY ONE CATEGORY TWO FLA....
...3d 312 (Fla. 2018).
In 2014, the legislature created a lewd and lascivious battery classified as a
first degree felony if the defendant was 18 years of age or older at the time of the
crime and had a prior conviction for an enumerated crime. See § 800.04(4)(c), Fla.
Stat....
...- 15 -
This instruction was adopted in 2007 [
969 So. 2d 245] and amended in 2015
[
163 So. 3d 478], and 2018.
11.10(b) LEWD OR LASCIVIOUS BATTERY (ENCOURAGING,
FORCING OR ENTICING)
§
800.04(4)(a)2, Fla....
...in [sadomasochistic abuse] [sexual bestiality] [prostitution] [or]
[any act involving sexual activity].
2. At the time of the offense, (victim) was less than 16 years of age.
Definitions.
Give if applicable.
§ 800.04(1)(a), Fla....
...animal involving the sex organ of the one and the mouth, anus, or vagina of
the other.
§
796.07(1)(a), Fla. Stat.
“Prostitution” is the giving or receiving of the body for sexual activity
for hire but excludes sexual activity between spouses.
§
800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§
800.04(1)(b), Fla. Stat.
“Consent” means intelligent, knowing, and voluntary consent, and does
not include submission by coercion.
§
800.04(1)(c), Fla. Stat.
“Coercion” means the use of exploitation, bribes, threats of force, or
intimidation to gain cooperation or compliance.
§
800.04(3), Fla....
...ual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS BATTERY (ENCOURAGING, FORCING OR
ENTICING) — 800.04(4)(a)2
CATEGORY ONE CATEGORY TWO FLA....
...3d 312 (Fla. 2018).
In 2014, the legislature created a lewd and lascivious battery classified as a
first degree felony if the defendant was 18 years of age or older at the time of the
crime and had a prior conviction for an enumerated crime. See § 800.04(4)(c), Fla.
Stat....
...of “sadomasochistic abuse” and “sexual
bestiality” in §
847.001, Fla. Stat., that differ from the statutory definitions in
§
827.071, Fla. Stat. As of June 2018, there is no case law that decides which
definition applies for a violation of §
800.04(4)(a)2, Fla. Stat.
This instruction was adopted in 2007 [
969 So. 2d 245] and amended in 2015
[
163 So. 3d 478], and 2018.
11.10(c) LEWD OR LASCIVIOUS MOLESTATION
§
800.04(5), Fla....
...was less than 18 years of age at the time of the offense.
Definition.
The words “lewd” and “lascivious” mean the same thing: a wicked,
lustful, unchaste, licentious, or sensual intent on the part of the person doing
an act.
Give if applicable.
§ 800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§ 800.04(3), Fla....
...“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
- 21 -
LEWD OR LASCIVIOUS MOLESTATION; DEFENDANT 18 OR OVER;
VICTIM LESS THAN 12 —
800.04(5)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
None Lewd or
800.04(5)(c)2 11.10(c)
Lascivious Molestation;
Defendant 18 or over;
Victim 12 or over but
less than 16
Lewd or Lascivious
800.04(5)(c)1 11.10(c)
Molestation; Defendant
less than 18; Victim less
than 12
Lewd or Lascivious
800.04(5)(d) 11.10(c)
Molestation; Defendant
less than 18; Victim 12
or over but less than 16
Attempt
777.04(1) 5.1
Aggravated battery
784.045(1)...
...whether the defendant had a prior conviction for an enumerated crime. If this
enhancement is charged, Apprendi v. New Jersey,
530 U.S. 466 (2000) may require
the jury to make additional findings regarding the prior qualifying conviction
and/or the age of the victim involved. See §
800.04(5)(e), Fla. Stat.
This instruction was adopted in 2008 [
998 So. 2d 1138] and amended in
2013 [
109 So. 3d 721], and 2015 [
163 So. 3d 478] and 2018.
11.10(d) LEWD OR LASCIVIOUS CONDUCT
§
800.04(6), Fla....
...Give if applicable.
§
777.04(2), Fla. Stat.
To “solicit” means to ask earnestly or to try to induce the person
solicited to do the thing solicitedcommand, encourage, hire, or request
another person to engage in specific conduct.
§
800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§
800.04(3), Fla....
...irtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS CONDUCT, DEFENDANT 18 OR OLDER –
800.04(6)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
NoneLewd or
800.04(6)(c) 11.10(d)
lascivious conduct;
defendant less than 18
Attempt
777.04(1) 5.1
Felony battery
784.041(1) 8.5...
...2018).
If the age of the defendant is not in dispute, the parties may agree to not give
the necessary lesser-included offense.
This instruction was adopted in 2008 [
998 So. 2d 1138] and amended in
2015 [
163 So. 3d 478] and 2018.
11.10(e) LEWD OR LASCIVIOUS EXHIBITION PRESENCE OF CHILD
§
800.04(7)(a), Fla....
...- 26 -
Definitions.
Give if applicable.
The words “lewd” and “lascivious” mean the same thing: and mean a
wicked, lustful, unchaste, licentious, or sensual intent on the part of the person
doing an act.
§ 800.04(1)(a), Fla....
...on another or receiving such harm oneself.
§
847.001(15)827.071(g), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§
800.04, Fla. Stat. See State v. Werner,
609 So. 2d 585 (Fla. 1992).
“In the presence of” means that (victim) saw, heard, or otherwise sensed
that the act was taking place.
§
800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§
800.04(3), Fla....
...al School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS EXHIBITION PRESENCE OF CHILD;
DEFENDANT 18 OR OLDER —
800.04(7)(a) and (7)(b)
CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO.
NoneLewd or lascivious
800.04(7)(c) 11.10(e)
exhibition presence of
child; defendant less
than 18
Attempt
777.04(1) 5.1
- 28 -
Exposure of Sexual...
...of “sadomasochistic abuse” and “sexual
bestiality” in §
847.001, Fla. Stat., that differ from the statutory definitions in
§
827.071, Fla. Stat. As of June 2018, there is no case law that decides which
definition applies for a violation of §
800.04(7)(a), Fla....
...At the time of the offense, (Ddefendant) was less than 18 years of
age at the time of the offense.
Definitions.
The words “lewd” and “lascivious” mean the same thing: a wicked,
lustful, unchaste, licentious, or sensual intent on the part of the person doing
an act.
§ 800.04(1)(a), Fla....
...on another or receiving such harm oneself.
§
847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§
800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§
800.04(3), Fla....
...[The term also includes any person who is a parole examiner
with the Parole Commission.]
The words “lewd” and “lascivious” mean the same thing: a wicked,
lustful, unchaste, licentious, or sensual intent on the part of the person doing
an act.
§ 800.04(1)(a), Fla....
...on another or receiving such harm oneself.
§
847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§
800.04(1)(d), Fla....
...committed or attempted or a person who has reported these acts to a law
enforcement officer.
See State v. Werner, 609 So._2d 585 (Fla. 1992).
“In the presence of” means that a victim saw, heard, or otherwise
sensed that the act was taking place.
§ 800.04(2), Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...d in sexual
intercourse with a 14-year-old female victim. The state charged him with lewd or
4
Case: 10-10676 Date Filed: 11/14/2014 Page: 5 of 107
lascivious battery, see Fla. Stat. § 800.04(4) (2004), but he pleaded guilty to a
lesser offense of third-degree felony child abuse....
CopyPublished | Florida 1st District Court of Appeal
...On appeal from the Circuit Court for Alachua County.
James M. Colaw, Judge.
November 13, 2024
KELSEY, J.
A jury convicted Appellant of lewd or lascivious molestation
(victim under 12), and lewd or lascivious exhibition—violations of
sections 800.04(5)(b) and 800.04(7)(b), Florida Statutes (2019),
respectively....
...On this record, we find no abuse of discretion in the
trial court’s allowing the CPT interviewer’s limited testimony.
Jury Instructions
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....
CopyPublished | Florida 3rd District Court of Appeal | 2006 Fla. App. LEXIS 18288, 2006 WL 3078936
...On July 26, 2004, defendant, William Coleman Felts, entered a guilty plea to one count of sexual battery on a minor in violation Section
794.011(2), Florida Statutes, one count of lewd and lascivious molestation of a child under twelve years in violation of section
800.04(5)(b), and one count of battery of a child by bodily fluids in violation of section
784.085....
CopyPublished | Florida 2nd District Court of Appeal
...ed a
violation of condition 33 instead of condition 21.
2Mr. Quijano was originally placed on sex offender probation after
pleading guilty to lewd and lascivious battery on a person older than twelve but younger
than sixteen. See § 800.04(4)(a)(1), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 6297, 2010 WL 1812635
...g of the allegations regarding the driving log contained in condition 26. See Dawkins v. State,
936 So.2d 710, 713 (Fla. 2d DCA 2006). Accordingly, we affirm the revocation of community control. AFFIRMED. GRIFFIN and ORFINGER, JJ., concur. NOTES [1] §
800.04(4)(a), Fla. Stat. (2005). [2] §
800.04(5)(c)2., Fla....
CopyPublished | Florida 5th District Court of Appeal | 1993 Fla. App. LEXIS 5421, 1993 WL 142724
DIAMANTIS, Judge. We affirm appellant’s conviction under section 800.04, Florida Statutes (1989), and the sentence imposed following conviction; however, we reverse appellant’s conviction for direct criminal contempt because the evidence is insufficient to sustain that conviction....
CopyPublished | Florida 4th District Court of Appeal | 2015 WL 2089039
...Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
Appellant James Lopiano was convicted of three counts of lewd or
lascivious molestation under section 800.04(5), Florida Statutes (2009).
He was sentenced to twenty-five years imprisonment followed by lifetime
sex offender probation....
...questions to Appellant about penetration, along with the officer’s
commentary expressing skepticism at Appellant’s denial. Appellant was
convicted of three counts of lewd or lascivious molestation.
Analysis
Lewd or lascivious molestation under section 800.04(5)(a), Florida
Statutes (2009), occurs when a person “intentionally touches in a lewd or
lascivious manner the breasts, genitals, genital area, or buttocks, or the
clothing covering them, of a person less than 16 years of age, or for...
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 6719, 2015 WL 2089068
...432012CF000134.
Margaret Good-Earnest of Good-Earnest Law, P.A., Lake Worth, for
appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.
FORST, J.
Appellant Jose Lopez was convicted of lewd or lascivious molestation
under section 800.04(5)(b), Florida Statutes (2011), and sentenced to
twenty-five years imprisonment....
CopyPublished | District Court, S.D. Florida | 2009 WL 1270208, 2009 U.S. Dist. LEXIS 40273
...In sum, a judgment of acquittal based upon entrapment is not warranted. Next, the Defendant asserts that a judgment of acquittal should be entered because the Government failed "to prove that Mr. Lanzon's conduct could have been charged as a sexual battery under Florida Statute 800.04(4)(a)." D.E. # 219, pg. 1. As reflected in the transcript (D.E. # 217), the undersigned had concerns with the fact that, in the Third Superseding Indictment, the Government relied upon a subsection of the Florida Statutesi.e., § 800.04(4)(a)that requires sexual contact but there was no evidence of sexual contact introduced during the trial....
...ound guilty of an attempt offense under § 2422(b) if the following fact, inter alia, is proven beyond a reasonable doubt: "That if the sexual activity had occurred, the Defendant could have been charged with a criminal offense under Florida Statute 800.04(4)(a)." D.E. # 213, pg. 13 (emphasis added). There is no allegation that any sexual activity occurred, and therefore, that conclusively establishes why the Defendant Lanzon was not charged under Florida Statute 800.04(4)(a)....
CopyPublished | Florida 5th District Court of Appeal | 1994 Fla. App. LEXIS 4315
...The issue of whether minors have a right to consent to have sexual intercourse under the privacy amendment has not been addressed by the courts of this state in the context of section
794.05. However, the Fifth District addressed this issue in Jones v. State,
619 So.2d 418 (Fla. 5th DCA 1993), with regard to section
800.04, Florida Statutes (1991). The Jones court held that section
800.04, which prohibits, inter alia, sexual intercourse with persons under sixteen, was constitutional....
...Statutes (1991), unconstitutional as it pertains to a minor’s consensual sexual activity? FRANK, C.J., and FULMER, J., concur. . Whether the constitutional right of privacy of minors announced in In re T.W. renders unconstitutional that portion of section 800.04, which provides that consent is not a defense to a prosecution for sexual activity with a minor under sixteen?
CopyPublished | Court of Appeals for the Eleventh Circuit | 2012 WL 1939798, 2012 U.S. App. LEXIS 10886
...“crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A), and reduced it by three
levels under U.S.S.G. § 3E1.1 for acceptance of responsibility. On appeal,
Cortes-Salazar argues that the district court erred in determining that his prior
conviction under Fla. Stat. § 800.04 for a “lewd assault act” qualified as “sexual
abuse of a minor,” and, therefore, as a “crime of violence” under § 2L1.2....
...or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson
v. United States,
508 U.S. 36, 38 (1993).
In United States v. Padilla-Reyes,
247 F.3d 1158 (11th Cir. 2001), we
considered whether the 1987 version of Fla. Stat. §
800.04 constituted “sexual
abuse of a minor” for purposes of the sixteen-level “aggravated felony”
enhancement under the version of § 2L1.2 in effect at the time....
...We interpreted “sexual abuse of a minor” to mean “a
3
perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a
purpose associated with sexual gratification.” Id. at 1163. We recognized that
violations of § 800.04 might not involve any physical contact with the victim, id.
at 1162, but concluded that all possible violations involve the misuse or
maltreatment of a child for sexual gratification, and, thus, constitute “sexual abuse
of a minor,” see id. at 1163-64. Although the amended version of § 800.04 under
which Cortes-Salazar was convicted differed slightly from the version discussed in
Padilla-Reyes, the elements of Cortes-Salazar’s offense were identical to the
elements of the offense in 1987. Compare Fla. Stat. § 800.04 (1993) (proscribing
“[k]nowingly commit[ting] any lewd or lascivious act in the presence of any child
under the age of 16 years”), with Fla. Stat. § 800.04 (1987) (same).
Padilla-Reyes, however, involved the definition of the term “aggravated
felony” which the version of § 2L1.2 in effect at the time cross-referenced to the
Immigration and Nationality Act (“INA”)....
...ge. Id. at 783. We noted that, for
traditional offenses developed in the common law, like aggravated assault, courts
follow the Taylor approach. Id. We said that, in Padilla-Reyes, we used the
plain-meaning approach in holding that a violation of § 800.04 constituted “sexual
6
abuse of a minor,” and that Padilla-Reyes remains binding precedent....
...§ 1101(a)(43)(A), this does not suggest a change of definition. Indeed, we
have applied Padilla-Reyes after the amendment of § 2L1.2. See Ortiz-Delgado,
451 F.3d at 756-57. Therefore, the district court did not err in relying on
Padilla-Reyes to hold that a violation of §
800.04 falls within the plain meaning of
the term “sexual abuse of a minor.”1
1
Moreover, because we implemented the plain-meaning approach in Padilla-Reyes and
held that the term “sexual abuse of a minor” includes the conduct proscribed by §
800.04, see
247 F.3d at 1162-64, we are foreclosed from considering Cortes-Salazar’s argument that
8
Cortes-Salazar also argues that a violation of §
800.04 cannot be considered
a “crime of violence” within the meaning of § 2L1.2 without violating the plain
meaning of that term, as defined in recent Supreme Court and Eleventh Circuit
case law....
...t whether the
convictions constituted “crime[s] of violence” as defined under § 2L1.2.
Likewise, we held in United States v. Harris,
608 F.3d 1222 (11th Cir. 2010), that
sexual battery of a child under sixteen in violation of Fla. Stat. Ann. §
800.04(3)
(1996), was not categorically a violent felony under the ACCA.
Under the ACCA, a “violent felony” is defined as an offense that:
(i) has as an element the use, attempted use, or threatened use of
physical forc...
...sents a serious potential risk of
physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B). Unlike § 2L1.2, the ACCA does not enumerate “sexual
abuse of a minor” as a “violent felony.” Compare id., with U.S.S.G. § 2L1.2 cmt.
§ 800.04’s lack of an age differential requirement prevents it from meeting the plain meaning of
“sexual abuse of a minor.”
9
n.1(B)(iii).
Because Johnson, Begay, and Harris addressed w...
CopyPublished | Florida 2nd District Court of Appeal | 2003 Fla. App. LEXIS 7977, 2003 WL 21241919
...' Count III charged that Horne did unlawfully and knowingly commit a lewd or lascivious act in the presence of [his son], a child under the age of 16 years, in that the penis of [Horne] penetrated or had union with the vagina of [Horne’s wife] in the presence of [his son], contrary to Florida Statute 800.04....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 1844310, 2013 Fla. App. LEXIS 7157
...tes should be destroyed, unread by others. REVERSED and REMANDED for a new trial. LAWSON, J., and MENDOZA, C.E., Associate Judge, concur. . §
847.0135(3)(b), Fla. Stat. (2010). . §
847.0135(4), Fla. Stat. (2010). . §
777.04(1), Fla. Stat. (2010); §
800.04(4)(a), Fla. Stat. (2010). .§
777.04(1), Fla. Stat. (2010); §
800.04(7)(a)l.-3„ (b), Fla....
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 8054
...ins.” . The record reflects that while the court refused to charge the jury as to assault and battery, it did charge them on the lesser included offenses of lewd, lascivious or indecent assault or act upon or in the presence of a child (Fla.Stat., §
800.04, F.S.A.) and the offense of unnatural and lascivious acts (§
800.02, Fla.Stat., F.S.A.)....
CopyPublished | Supreme Court of Florida | 12 Fla. L. Weekly 259, 1987 Fla. LEXIS 1921
OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY, F.S. 800.-04; (8) A. .. new instruction: CONTRABAND IN COUNTY
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 8108, 2016 WL 3057352
...but younger than sixteen should be dismissed because the State could never establish
the victim's age to be between twelve and sixteen due to the fact that when Duclos-
Lasnier arranged to meet the victim he was actually texting an adult sheriff's deputy.
See § 800.04(4)(a), Fla....
...Even though
he was actually communicating with a police officer portraying himself as a thirteen-
year-old girl, every reasonable inference indicates that Duclos-Lasnier attempted to
meet a thirteen-year-old girl in order to have sex with her; he clearly was not trying to
meet an adult police officer. See generally § 800.04(d), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 7965, 2016 WL 3003343
...elements of category [two] crimes may have been alleged and proved.’”
Williams v. State,
627 So. 2d 1279, 1280 (Fla. 1st DCA 1993) (quoting
Wimberly,
498 So. 2d at 931).
Here, Knighton was charged with lewd or lascivious battery pursuant
to section
800.04, Florida Statutes. §
800.04(4)(a)1., Fla....
...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....
CopyPublished | Florida 5th District Court of Appeal | 1976 Fla. App. LEXIS 15148
assault on female minors in violation of Fla.Stat. §
800.04. Each violation was punishable by imprisonment
CopyPublished | Florida 4th District Court of Appeal
...osts in
the absence of evidence supporting the requested amount. We therefore
reverse the defendant’s sentence and remand for resentencing.
As conceded by the State, the defendant’s two prior record offenses for
violating the 1995 version of section 800.04, Florida Statutes, were
improperly scored as level 7 offenses on his CPC scoresheet....
CopyPublished | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 337, 2013 Fla. LEXIS 1944, 2013 WL 2248756
...(Sexual offender registration is required if the offender is 14 years of age or older at the time of the offense and at least one of the lines below is checked “Yes”! Was the victim under the age of 12 at the time of the offense? Yes. No. Did the sexual activity involve force or coercion? Yes. No. . F.S. 800.04(51(dl; Lewd or Lascivious Molestation - Victim 12-15: Intentionally touching the breasts, genitals, genital area, buttocks, or the clothing covering them, of a person 12 years of age or older but less than 16 years of age, or forcing or enticing a person less than 16 years of age to so touch the perpetrator....
CopyPublished | District Court of Appeal of Florida | 1984 Fla. App. LEXIS 13365
persons under the age of fourteen contrary to Section
800.04, Florida Statutes (1981). For the sexual battery
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6784
...By a petition for delinquency it was charged that the appellant child “did, at or near 4601 N.W. 167th Street, Dade County, Florida, on or about January 25, 1972, unlawfully handle [name here omitted] a child under the age of 14 years in a lewd and lascivious manner in violation of Florida Statutes, § 800.04.” The cited statute provides in part: “Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, * * The matter proceeded to hearing on...
CopyPublished | Florida 4th District Court of Appeal
...3d at 92.
Lewd or lascivious molestation occurs when “[a] person . . .
intentionally touches in a lewd or lascivious manner the breasts, genitals,
genital area, or buttocks, or the clothing covering them, of a person less
than 16 years of age[.]” § 800.04(5)(a), Fla. Stat. (2015). It is a life felony
to commit lewd or lascivious molestation on or against a child under the
age of twelve. See § 800.04(5)(b), Fla....
...aforesaid, being a person of the age of eighteen (18) years or
older, did intentionally touch in a lewd or lascivious manner
the genital area, or the clothing covering it, of [Minor Victim],
a person less than twelve (12) years of age, contrary to F.S.
800.04(5)(a) and F.S. 800.04(5)(b).
As seen above, the charging instrument clearly fails to allege that the
charged offense was committed against the victims’ will....
...r a permissive lesser-included
instruction had not been met. Khianthalat II,
974 So. 2d at 361. Then,
having decided the conditions had not been met, the Florida Supreme
Court favorably quoted the Second District’s discussion:
The fact that section
800.04 eliminates consent as a defense
necessarily implies that the sexual activity may be
consensual, but nevertheless, the State, as a matter of policy,
will ignore the consent because of its legitimate interest in
protecting minor from sexual exploitation....
...We
disagree, as the presumption of a lack of consent based on the victim’s age
cannot be implicitly alleged when consent is not an essential element of
the charged offense.
The elimination of consent as a defense and apparent absence of the
“against that person’s will” element in section 800.04(5) means simple
battery may be a permissive lesser-included offense to a lewd or lascivious
molestation so long as both conditions are met....
... being eighteen (18) years of age or older, did intentionally
touch in a lewd or lascivious manner the genital area, or
the clothing covering it, of [victim], a person less than
twelve (12) years of age, contrary to F.S. 800.04(5)(a) and
F.S. 800.04(5)(b).
The information tracks the lewd or lascivious molestation statute: “A
person wh o intentionally touches in a lewd or lascivious manner the
breasts, genitals, genital area, or buttocks, or the clothing covering them,
of a person less than 16 years of age . . . commits lewd or lascivious
molestation.” § 800.04(5)(a), Fla. Stat. (2015). It is a life felony for an
adult to touch a child in this manner if the child is less than twelve years
old. § 800.04(5)(b), Fla....
...The supreme court, in
affirming the lower courts’ holding that the defendant was not entitled to
the battery instruction, dissected the defense’s argument and rejected it.
The court explained that the defense confused the unavailability of
consent as a defense to lewd or lascivious offenses under section 800.04
(no matter the child’s age) with the legal presumption that a child under
twelve cannot consent to the sexual activity described in the sexual battery
statute....
...). As offenses under the lewd or
lascivious statute are intended to protect children under sixteen from lewd
or lascivious offenses regardless of consent, that statute expressly
eliminates consent as a defense. See Khianthalat II,
974 So. 2d at 362;
§
800.04(2), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 5865, 2009 WL 1424084
...Accordingly, we reverse the new sentences imposed on Mr. Durbrow by the postconviction court and remand for resen-tencing. I. THE RELEVANT PROCEDURAL HISTORY In January 1999, Mr. Durbrow pleaded nolo contendere to two counts of lewd and lascivious act, section 800.04(2), Florida Statutes (1997), second-degree felonies; one count of procuring a person under sixteen for prostitution, section 796.03, Florida Statutes (1997), a second-degree felony; and one count of sexual battery by multiple perpetrat...
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Nov 9, 2023
...the Court concluded that a conviction pursuant to it was not an
aggravated felony. See id. at 391.
In this case, we must decide whether a Florida conviction
for lewd and lascivious battery under the 2008 version of Fla. Stat.
§ 800.04(4)—an offense which the Florida Supreme Court has char-
acterized as statutory rape—constitutes the sexual abuse of a
∗ The Honorable Anna M....
...minor, and is therefore an aggravated felony under the INA. Ap-
plying the categorical approach, and building on the Supreme
Court’s analysis in Esquivel-Quintana, we hold that it is not. The
least culpable conduct under § 800.04(4) is consensual sexual activ-
ity between adolescents who are 12 to 15 years old, with no mini-
mum age required for the perpetrator....
...I
Marken Leger, a citizen of Haiti, has lived in the United
States as an asylee since 2000. In 2009, he pleaded no contest to a
charge of lewd and lascivious battery, in violation of Fla. Stat. §
800.04(4). 1
1 Given the date of Mr. Leger’s conviction, all references in this opinion to §
800.04(4)—unless otherwise stated—are to the 2008 version....
...-1 Date Filed: 05/20/2024 Page: 5 of 30
22-10971 Opinion of the Court 5
offenses under the INA. The immigration judge additionally found
that his conviction under Fla. Stat. § 800.04(4) was an aggravated
felony.
Mr....
...§
1208.22, the BIA explained, that issue needed to be resolved by the
immigration judge.
On remand, the immigration judge terminated Mr. Leger’s
asylee status pursuant to 8 C.F.R. § 1208.24. In doing so, the immi-
gration judge ruled that his conviction under Fla. Stat. § 800.04(4)
was an aggravated felony because it constituted the sexual abuse of
a minor. See A.R. 51–53. The immigration judge thought that §
800.04(4) is divisible, but concluded that divisibility did not matter
because all the conduct prohibited by subsection (4) of the statute
constituted the sexual abuse of a minor....
...Leger’s
convictions for marijuana possession under Fla. Stat. §
893.13(6)
rendered him removable. See A.R. 6–7. The BIA also concluded
that the immigration judge properly terminated Mr. Leger’s asylee
status because the conviction under Fla. Stat. §
800.04(4) consti-
tuted the sexual abuse of a minor and was therefore an aggravated
USCA11 Case: 22-10971 Document: 43-1 Date Filed: 05/20/2024 Page: 6 of 30
6 Opinion of the Court 22-10971
felony....
...marijuana plant, while [21 U.S.C. § 802(16), the federal statute de-
fining a controlled substance,] does not.” Id. (quotation marks
omitted). Accordingly, we held that a Florida conviction for
2Like the immigration judge, the BIA believed that § 800.04(4) is divisible but
thought divisibility was irrelevant because the “full range of conduct” pro-
scribed by subsection (4) of the statute constituted the sexual abuse of a minor.
See A.R....
...Leger was subject to removal pursuant to 8
U.S.C. § 1227(a)(2)(B)(i) and inadmissible pursuant to 8 U.S.C. §
1182(a)(2)(A)(i).
III
We now address whether Mr. Leger’s conviction under Fla.
Stat. § 800.04(4) constitutes an aggravated felony....
...See §
USCA11 Case: 22-10971 Document: 43-1 Date Filed: 05/20/2024 Page: 8 of 30
8 Opinion of the Court 22-10971
1158(b)(2)(B)(i). This case therefore turns on whether Mr. Leger’s
conviction under Fla. Stat. § 800.04(4) is an aggravated felony.
As relevant here, the INA defines an aggravated felony as
including the “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A)
(listing “murder, rape, or sexual abuse of a minor”). If Mr. Leger’s
§ 800.04(4) conviction constitutes the sexual abuse of a minor
within the meaning of the INA, his asylee status was properly ter-
minated, making him removable.
Mr. Leger argues that the generic federal definition of the
sexual abuse of a minor requires a four-year age difference between
the perpetrator and the victim. Based on this premise, he contends
that his conviction under § 800.04(4) is not the sexual abuse of a
minor because the statute does not include a four-year age differ-
ential....
...rts that our precedent calls
for rejection of Mr. Leger’s argument. See Respondent’s Br. at 19–
21.
The parties agree that the categorical approach applies here,
and we concur in their assessment. Even if §
800.04(4) is divisible,
such that the modified categorical approach might apply, see, e.g.,
Pereida v. Wilkinson,
592 U.S. 224, 238–39 (2021), the documents pre-
sented by the government at the removal proceeding do not shed
any light on whether Mr. Leger violated subsection (a) or subsec-
tion (b) of §
800.04(4)....
...(alteration in
original) (internal quotation marks and citation omitted). And we
do not consider Mr. Leger’s actual conduct. See Pereida,
592 U.S. at
234; Moncrieffe v. Holder,
569 U.S. 184, 190 (2013).
B
We begin with §
800.04(4), the Florida statute Mr....
...age,” or (b) “[e]ncourag[ing],
forc[ing], or entic[ing] any person less than 16 years of age to en-
gage in sadomasochistic abuse, sexual bestiality, prostitution, or
any other act involving sexual activity.” Fla. Stat. § 800.04(4)(2008).
Neither the victim’s consent, nor the ignorance of or bona-fide be-
lief in the victim’s age, could be asserted as defenses. See §§
800.04(2)–(3).
The least of the conduct criminalized by § 800.04(4) is con-
sensual sexual activity between adolescents aged 12 to 15, as set out
in subsection (a), with no minimum age for the perpetuator....
...See
USCA11 Case: 22-10971 Document: 43-1 Date Filed: 05/20/2024 Page: 10 of 30
10 Opinion of the Court 22-10971
Khianthalat v. State,
974 So. 2d 359, 362 (Fla. 2008) (agreeing that §
800.04(4) was “intended to criminalize sexual activity with children
twelve years of age or older but less than sixteen years of age even
where the activity is consensual”); State v. Snyder,
807 So. 2d 117,
120 (Fla. 3d DCA 2002) (“[C]ourts have previously held that ‘lewd
and lascivious conduct’ in violation of [§]
800.04 carries with it the
same concept of ‘strict liability’ that has traditionally characterized
‘statutory rape[.]’”). Indeed, the Florida Supreme Court has char-
acterized §
800.04 as a “statutory rape” statute....
...minors who were under 16); see also Anthony M. Amelio, Florida’s
Statutory Rape Law: A Shield or a Weapon? A Minor’s Right of Privacy
Under Florida Statutes §
794.05, 26 Stetson L. Rev. 407, 408, 417, 422
(1996) (referring to §
800.04 as a “statutory rape” statute). 3
The Florida Supreme Court’s characterization of §
800.04 as
a statutory rape statute is understandable. For example, with re-
spect to age, §
800.04(4) is silent about the age of the perpetrator.
A minor who is 12 to 15 years old (or maybe even younger) can
therefore be charged for engaging in sexual activity with another
minor in the same protected age group. As one Florida court has
put it, “it is appropriate to charge a minor under” §
800.04. See State
v. J.A.S.,
686 So. 2d 1366, 1368 (Fla. 5th DCA 1997), aff’d,
705 So. 2d
at 1386–87 (rejecting as-applied constitutional (privacy and equal
3 The government agrees that §
800.04(4) is a “statutory rape offense.” Re-
spondent’s Br....
...at 23.
USCA11 Case: 22-10971 Document: 43-1 Date Filed: 05/20/2024 Page: 11 of 30
22-10971 Opinion of the Court 11
protection) challenges to the 1993 version of §
800.04 by two 15-
year-old boys who had consensual sexual intercourse with two 12-
year-old girls).
Moreover, §
800.04(4) does not require any age differential
between the perpetrator and the victim. The Florida Supreme
Court has explained that §
800.04(4) only has two elements: (1) that
the defendant engaged in conduct meeting the statutory definition
of sexual activity with the victim; and (2) that the victim was 12 to
15 years old at the time. See Williams v. State,
957 So. 2d 595, 599
(Fla. 2007). Accord In re Standard Jury Instructions in Crim. Cases (No.
2005-3),
969 So. 2d 245, 282 (Fla. 2007) (approving a standard jury
instruction for §
800.04(4) containing these two elements). So a 12-
year-old (or maybe someone even younger) can violate §
800.04(a)
by engaging in consensual sexual activity with a 15-year-old....
...sensual sexual activity with another 16-year-
old. See B.B. v. State,
659 So. 2d 256, 260 (Fla. 1995) (plurality opinion).
A separate Florida statute, Fla. Stat. §
943.04354, allows a person convicted of
violating Fla. Stat. §
800.04, among others, to petition for removal of the obli-
gation to register as a sex offender or sexual predator if he or she meets certain
criteria....
...See §
943.04354(1)(c).
USCA11 Case: 22-10971 Document: 43-1 Date Filed: 05/20/2024 Page: 12 of 30
12 Opinion of the Court 22-10971
L.L.N. v. State,
504 So. 2d 6 (Fla. 2d DCA 1987), is instructive
in understanding the reach of §
800.04(4). In that case the Second
District addressed a constitutional challenge to the 1985 version of
§
800.04 by a 14-year-old who was adjudicated delinquent for com-
mitting a lewd and lascivious assault on a minor under the age of
16....
...Id. at 8. See also 6A Fla. Jur. 2d Criminal Law—Substantive Princi-
ples/Offenses § 759 (March 2024 update) (“The mere fact that there
is no exception for perpetrators under the age of 16 does not make
the statute [§ 800.04] unconstitutional.”).
Given this landscape, we view § 800.04(4) as a statutory rape
statute in which the least prohibited conduct is consensual sexual
activity between adolescents 12 to 15 years of age, with no mini-
mum age for the perpetrator and no age differential between the
participants....
...minor requires some age differential between the perpetrator and
the victim.5
In United States v. Padilla-Reyes,
247 F.3d 1158 (11th Cir. 2001),
which involved a conviction under the 1987 version of Fla. Stat. §
800.04, we adopted a similar definition of the sexual abuse of a mi-
nor....
...xual abuse of a minor,’ and
thus, a crime of violence under the Sentencing Guidelines.”);
Chuang v. U.S. Att’y Gen.,
382 F.3d 1299, 1301-02 (11th Cir. 2004) (in-
volving a conviction under the 1996 version of Fla. Stat. §
800.04
and rejecting the petitioner’s argument that we “should evaluate
the factual circumstances of his offense instead of the terms of the
statute under which he was convicted”); United States v....
....
involve[s] either misuse or maltreatment of a minor for the perpe-
trator’s sexual gratification.”).
The government asserts that two of these cases, Padilla-
Reyes and Chuang, control the outcome here because they held that
convictions under earlier versions of Fla. Stat. § 800.04 constituted
the sexual abuse of a minor....
...eral offense of sexual abuse of a
minor requires” that the perpetrator be at least one year older than
the victim. See Esquivel-Quintana,
581 U.S. at 390. Applying the cat-
egorical approach, the 2008 version of Fla. Stat. §
800.04(4) is
broader than the generic federal definition because it does not have
any age differential. That means that Mr. Leger’s §
800.04(4) con-
viction does not constitute the sexual abuse of a minor and is not
an aggravated felony under the INA....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 7629, 2015 WL 2393311
...dgment of
acquittal on count one for lewd and lascivious battery committed on or
between August 13, 2011, and December 31, 2011. We reverse his
conviction and sentence on that count, and affirm his convictions and
sentences on all other counts.
Section 800.04(4)(a), Florida Statutes (2011), provides, in pertinent
part: “A person who . . . [e]ngages in sexual activity with a person 12 years
of age or older but less than 16 years of age . . . commits lewd or lascivious
battery . . . .” Section 800.04(1)(a), Florida Statutes (2011), defines “sexual
activity,” in pertinent part, as “the oral, anal, or vaginal penetration by, or
union with, the sexual organ of another ....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 15974
...The defendant, Charles Andrew Matava, Jr., appeals the judgment of the court finding him guilty of a lewd, lascivious or indecent assault upon a child under fourteen years of age without intent to commit involuntary sexual battery. This offense is set forth in Section 800.04, Florida Statutes (1975)....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6641
...under the age of fourteen years, in a lewd, lascivious and indecent manner, to-wit: did grab said DEBORAH LYNN KELLEY and strike her about the face with intent to have sexual intercourse with the said DEBORAH LYNN KELLEY, contrary to Florida Statute 800.04 [F.S.A.], . . .” Section 800.04, Florida Statutes 1969, F.S.A., provides: “Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit a...
...“did grab said DEBORAH LYNN KELLEY and strike her about the face with intent to have sexual intercourse . . . ” We find this to be error but not fatal error. In the first instance Count Two ended with these words, “contrary to Florida Statute 800.04 [F.S.A.].” This apprised appellant of the statute under which Count Two was framed, which statute includes the omitted words....
CopyPublished | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 601, 2017 WL 2210387, 2017 Fla. LEXIS 1236
...Acevedo’s sentence was affirmed on direct appeal and, after the denial of his 3.850 motion, Acevedo filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that the predicate conviction used was insufficient to qualify him as a DSFO. Id. Specifically, Acevedo argued that the prior conviction under section 800.04, Florida Statutes (1981), did not contain elements similar to section 800.04(4), Florida Statutes (2005), or section 800.04(5), Florida Statutes....
...District’s decision in Durant. Id. at 439 . This review follows. DISCUSSION The issue before this Court is whether, under the Dangerous Sexual Felony Offender Act, section
794.0115(2)(e), Florida Statutes (2005), a conviction for an offense under section
800.04, Florida Statutes (1981), constitutes a “similar offense under a former designation” to those offenses enumerated in the Act....
...Because this is an issue of statutory interpretation, this Court’s review is de novo. Plott v. State,
148 So.3d 90, 93 (Fla.2014). The DSFO Act provides: Any person who is convicted of a violation of section
787.025; section
794.011(2), (3), (4), (5), or (8); section
800.04(4) or (5); section
825.1025(2) or (3); section
827.071(2), (3), or (4); or section
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: ... Has been previously convicted of a violation of section
787.025; section
794.011(2), (3), (4), (5), or (8); section
800.04(4) or (5); section 825,1025(2) or (3); section
827.071(2), (3), or (4); section
847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense tha...
...In 2005, those enumerated felonies were: • Luring or enticing a child, section
787.025, Florida Statutes (2005); • Sexual battery, section
794.011, Florida Statutes (2005); • Lewd or lascivious battery or molestation committed upon or in the presence of persons less than 16 years of age, section
800.04(4) and (5), Florida Statutes (2005); • Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person, section
825.1025, Florida Statutes (2005); • Sexual performance by a child, section
827.071, Florida Statutes (2005); and • Selling or buying of minors, section
847.0145, Florida Statutes (2005). In 1982, Acevedo was convicted of violating section
800.04, Florida Statutes (1981). In 1981, section
800.04, Florida Statutes, provided: Any person who shall handle, fondle, or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree .... §
800.04, Fla. Stat. (1981). The 1981 statute therefore prohibited molestation of, assault of, or lewd or lascivious conduct in the presence of a minor. In 2005, section
800.04, Florida Statutes, provided the following: (4)Lewd or lascivious battery.—A person who: (a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age; or (b) Encourages, forces, or entices any pe...
...punishable as provided in s.
775.082, s.
775.083, or s.
775.084. (c) An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. §
800.04(4)—(6), Fla....
...prohibited both lewd and lascivious battery and lewd or lascivious molestation of a minor. Acevedo argues that because the 1981 statute includes “without the intent to commit sexual battery” it cannot be found similar to the offenses defined in section 800.04, subsections (4) or (5), Florida Statutes (2005)....
...As the Fourth District noted, 1 “[b]oth statutes proscribe the lewd and lascivious touching of a child[,] ... require the victim to be under a certain similar age [and] are second degree felonies.” Id. In Durant, the Fifth District determined that section
800.04(1), Florida Statutes (1995) 2 was not similar to section
800.04(4)—(5), Florida Statutes, for the purposes of DSFO designation pursuant to section
794.0115(2)(e), Florida Statutes. Durant,
94 So.3d at 671 . Specifically, the Fifth District stated: [W]e do not believe that the 1995 version of section
800.04(1) is similar in elements to sections
800.04(4) and (5).'In particular, section
800.04(4) requires evidence of sexual activity^ whereas there is no sexual activity requirement contained in section
800.04(1), Florida Statutes (1995). Likewise, section
800.04(5) requires evidence that the perpetrator intentionally touched “the breasts, genitals, genital area, or buttocks, or .the clothing covering them” of the minor. Section
800.04(1), Florida Statutes (1995), contains no such requirement. Although section
800.04(5) and the 1995 version of section
800.04(1) contain other elements that are the same, we conclude they do not have similar elements for purposes of section
794.0115(2)(e). 1 Id. (footnote omitted). The district court continued, “Further, section 800,04(1), Florida Statutes (1995), shares similar elements with section
800.04(6), Florida Statutes [ (2012] ),[ 3 ] which is not a qualifying *882 felony in the DSFO statute.” Id....
...FO Act requires the courts to find the most similar statute to determine whether a pri- or offense is a qualifying felony. Acevedo argues that the Fourth District incorrectly looked only to the similarities between his prior conviction under section-800.04, Florida Statutes (1981), and his current conviction pursuant to section 800.04, Florida Statutes (2005)....
...He therefore asserts that this Court must decide the appropriate test for determining when a prior statute is similar in elements to an offense identified in section
794.0115, Florida Statutes. Acevedo further argues that his prior conviction under section
800.04, Florida Statutes (1981), does not contain similar elements to section
800.04(4) or (5), Florida Statutes (2005). We disagree. The conduct prohibited in the 1981 version of section
800.04 is nearly identical to that prohibited in subsection (5) of the 2005 version of the statute. Compare §
800.04, Fla....
...of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree ....”) with § 800.04(5)(a)-(b), Fla....
...solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct [and] commits a felony of the second degree.”). There are very few differences between the 1981 statute and subsection (5) of the 2005 statute: 800.04(1981) 800.04(5) (2005) handles, fondles, assaults intentionally touches in a lewd, lascivious, or indecent manner in a lewd or lascivious manner the • breasts, • genitals, OR • genital area, • buttocks, or • clothing covering those areas commits any lewd or lascivious act in the presence of a child under age 14 of a child under age 16 without the intent to commit sexual battery As demonstrated by the chart, the elements of the 1981 version of 800.04 and subsection (5) of the 2005 statute are remarkably similar....
...ause the elements, themselves, are sufficiently similar. See Dautel v. State,
658 So.2d 88, 90 (Fla.1995) ("[T]he elements of a crime are the surest way to trace that crime.” (quoting Forehand v. State, 557, So.24 103, 104 (Fla.1989))). . In 1995, section
800.04(1) read: "A person who: (1) handles, fondles, or assaults any child under the age of 16 in a lewd, lascivious, or indecent manner ... without committing the crime of sexual battery, commits-a felony of the second degree
800.04(1), Fla. Stat. (1995). . The 2012 version of section
800.04(6) is the same as the 2005 version quoted above.
CopyPublished | District Court of Appeal of Florida
of two of the various sex acts proscribed in section
800.04(4), Florida Statutes, during the same criminal
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 2121750, 2013 Fla. App. LEXIS 7964
...After supplemental briefing, the State rightly concedes the error. Specifically, Montgomery pleaded no contest to both counts of the information: (1) a violation of section
827.04(3), Florida Statutes (2009), a third-degree felony; and (2) a violation of section
800.04(4)(a), Florida Statutes (2009), a second-degree felony....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 5348, 1993 WL 153763
...3157 ,
111 L.Ed.2d 666 (1990) (justifying some relaxation of the confrontation clause of the United States Constitution based on the state’s interest in protecting victims of child abuse from the trauma of testifying). Lewine was charged with committing a lewd act or assault in the presence of a child in violation of section
800.04, Florida Statutes (1991)....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
...ndecent displays, including . . . graphic depictions
of childbirth.” FDBPR then charged defendants with violating a number of
Florida statutes, ranging from prohibitions of “lewd or lascivious exhibition,”
Fla. Stat. § 800.04(7), and vulgar or indecent “exposure of sexual organs,” Fla.
Stat....
...more stringent test for defining obscene speech. Unlike the lewd-
ness statute in Chesebrough, which barred “lewd or lascivious act[s]
in the presence of” children under fourteen, Chesebrough,
255 So. 2d
at 676 (emphasis added) (quoting Fla. Stat. §
800.04), the Act here—
which focuses on “depict[ions of] ....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
or lascivious exhibition,” Fla. Stat. §
800.04(7), and vulgar or indecent “exposure of sexual
CopyPublished | Florida 1st District Court of Appeal
...Facts
Following a jury trial, Appellant was found guilty of six counts
of lewd or lascivious battery on a person older than age 12 but
younger than age 16, with special findings of penetration as to each
count. See § 800.04(4)(a), Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Under the categorical approach, a court must “look to the elements and
the nature of the offense of conviction, rather than to the particular facts” of the
defendant’s record of conviction. Leocal v. Ashcroft,
543 U.S. 1, 7,
125 S. Ct. 377,
381 (2004). 6
Florida Statute
800.04 qualifies as a “crime of violence” within the meaning of U.S.S.G.
§ 4B1.2....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 5218, 1998 WL 233498
...Singletary,
684 So.2d 173 (Fla.1996). Appellant correctly argues that the sentencing judge erroneously sentenced him to seventeen years’ imprisonment, upon revocation of probation, for the offense of lewd and lascivious act upon a child in violation of section
800.04, Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal
...4th DCA
2006) (holding trial court erred in sua sponte imposing investigation costs
without notice and proof of the costs incurred).
Finally, the trial court erred in imposing the domestic violence
surcharge on count II, as section
938.08, Florida Statutes (2020), does not
encompass convictions under section
800.04, Florida Statutes (2020)....
CopyPublished | District Court of Appeal of Florida | 1964 Fla. App. LEXIS 4210
PER CURIAM. Information was filed on January 4, 1961, charging Early Boone with handling, fondling and making an assault on a female child under the age of 14 years. This is a felony as defined in Florida Statutes, section 800.04, F.S.A....
CopyPublished | Florida 4th District Court of Appeal | 1994 WL 68835
...Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan Fowler, Asst. Atty. Gen., West Palm Beach, for appellee. KLEIN, Judge. Defendant appeals from a conviction for violation of section 800.04(3) (statutory rape) arising out of his consensual sexual relations with his 15-year-old girlfriend....
...e process. We conclude the statute is constitutional and affirm. The mother of a 15-year-old discovered that defendant was having consensual sexual relations with her daughter and reported it to the police. Defendant was charged with that portion of section 800.04, Florida Statutes which provides: Any person who: (3) Commits an act defined as sexual battery under s....
...lates his constitutional rights. Virtually on all fours with the present case is Jones v. State,
619 So.2d 418 (Fla. 5th DCA 1993), rev. granted.
629 So.2d 133 (Fla. 1993), in which the fifth district upheld the validity of the consent provisions of section
800.04(3) after concluding that the defendant did have standing to assert Florida's constitutional right of privacy....
CopyPublished | Supreme Court of Florida
information charges respondent with two violations of Section
800.04 Florida Statutes (1975), lewd and lascivious
CopyPublished | Florida 5th District Court of Appeal | 1990 Fla. App. LEXIS 1418, 1990 WL 20394
...Because the trial court found the outcome probably was not affected by the deficiencies of trial counsel in this case, a determination supported by the record, we quash the order vacating Gibson’s judgment and sentence and remand for further proceedings. QUASH ORDER and REMAND. COBB and HARRIS, JJ., concur. . § 800.04(3), Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 2856, 2003 WL 825177
...Accordingly, we reverse the order granting Harrington’s motion for judgment of acquittal and direct the trial court to reinstate the jury’s verdict. REVERSED AND REMANDED. HARRIS, C., Senior Judge, concurs. SHARP, W., J., concurs specially with opinion. . § 800.04(4)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 23 Educ. L. Rep. 1146, 10 Fla. L. Weekly 610, 1985 Fla. App. LEXIS 12834
...es. We affirm. On March 8, 1983, while employed by the School Board of Broward County as a teacher at Pompano Beach Elementary School, appellant was criminally charged with eight counts of indecent assault upon several male children, in violation of section 800.04, Florida Statutes....
CopyPublished | Florida 2nd District Court of Appeal
...ismiss the latter charge on double-
jeopardy grounds, Jae-Il Byun pleaded no contest to unlawfully traveling to meet a
minor, in violation of section
847.0135(4)(a), Florida Statutes (2015), and to attempted
lewd battery, in violation of sections
800.04(4)(a)(1) and
777.04(1), Florida Statutes
(2015)....
...le
of electronic communication (5) to seduce, solicit, lure, or entice the child or person that
the defendant believed to be a child to engage in the illegal act or other unlawful sexual
conduct or to attempt to do so. To establish a violation of section 800.04(4)(a)(1), the
evidence must establish that the defendant "engag[ed] in sexual activity with a person
12 years of age or older but less than 16 years of age." Thus, to establish an attempt to
violate section 800.04(4)(a)(1), the evidence must clearly establish (1) that the
-4-
defendant intended to engage in sexual activity with a person twelve years of age or
older but less than sixteen years of age and (2) that the defendant committed an overt
act toward doing so....
...ss than 18 years
of age"); cf. §
847.001(1) (defining "adult" as "a person 18 years of age or older").
Attempted lewd battery, however, requires proof that the intended child victim is at least
twelve years' old but less than sixteen years' old. §
800.04(4)(a)(1); see also Glover v.
State, 863 So....
...ee felony for Byun, who
was twenty-four years' old at the time of the offense, to have engaged in sexual activity
with a sixteen year old. See §
794.05(1), Fla. Stat. (2015).
-8-
battery under sections
800.04(4)(a)(1) and
777.04(1) do not violate the prohibition
against double jeopardy....
CopyPublished | Florida 2nd District Court of Appeal | 2014 WL 866153, 2014 Fla. App. LEXIS 3055
...Such an omission is reversible error. See, e.g., Gore v. State,
100 So.3d 177, 178 (Fla. 2d DCA 2012). Mr. Walker pleaded guilty to three counts of lewd and lascivious conduct and one count of lewd or lascivious molestation, all second-degree felonies. See §
800.04(5)(c)(2), (6)(b), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 3756, 2000 WL 332617
...to conclude that the error in giving this instruction was harmful. State v. DiGuilio,
491 So.2d 1129 (Fla.1986). In light of the current standard instruction, however, it should not be given in the future. AFFIRMED. COBB and PETERSON, JJ., concur. . §
800.04(1), Fla....
CopyPublished | Florida 5th District Court of Appeal
PER CURIAM. AFFIRMED. See State v. Raleigh ,
686 So.2d 621 , 622-23 (Fla. 5th DCA 1996) (rejecting argument that section
800.04, Florida Statutes, is unconstitutional as applied to defendant because it precluded the defense of consent of minor victim, observing that "[i]t cannot be of any constitutional or logical significance to the child victim if the perpetrator is only seventeen-sixteen ......
CopyPublished | Florida 5th District Court of Appeal
PER CURIAM. AFFIRMED. See State v. Raleigh ,
686 So.2d 621 , 622-23 (Fla. 5th DCA 1996) (rejecting argument that section
800.04, Florida Statutes, is unconstitutional as applied to defendant because it precluded the defense of consent of minor victim, observing that "[i]t cannot be of any constitutional or logical significance to the child victim if the perpetrator is only seventeen-sixteen ......
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 15562
for the offense of lewd assault on a minor, Section
800.04, Florida Statutes (1975). Appellant was sentenced
CopyPublished | Florida 5th District Court of Appeal | 1997 WL 136403
...We find these errors are not harmless; accordingly, the conviction is reversed and the cause remanded for a new trial. We reverse the sentence without deciding whether it was erroneously imposed. REVERSED and REMANDED for new trial consistent with this opinion. PETERSON, C.J., and ANTOON, J., concur. NOTES [1] § 800.04(1), Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 3910, 2009 WL 4874760
...lained and distinguished, I cannot conclude that there exists a question of great public importance that necessitates resolution by our high court. GRIFFIN, LAWSON and JACOBUS, JJ., concur. NOTES [1] §
794.011(1)(h) & (8)(b), Fla. Stat. (2006). [2] §
800.04(5)(a) & (c)2., Fla....
CopyPublished | Florida 1st District Court of Appeal | 1999 Fla. App. LEXIS 3835, 1999 WL 163001
...Fayne entered a plea of nolo contendere to the charges of an attempt to commit a sexual battery upon a person less than 12 years of age by a person less than 18 years of age; and to the charge of a lewd or lascivious act in the presence of a child, under the age of 16 years. §
794.011, Fla. Stat., and §
800.04, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 3986, 2011 WL 1076999
...Second, as to the oral finding that Defendant is a sexual predator, we remand this case to the trial court to make the necessary written findings in accordance with section
775.21(5)(a)1., Florida Statutes (2007). AFFIRMED; REMANDED. GRIFFIN, SAWAYA and PALMER, JJ., concur. NOTES [1] §
827.071(5), Fla. Stat. (2007). [2] §
800.04(5)(b), Fla....
CopyPublished | District Court, M.D. Florida | 2009 U.S. Dist. LEXIS 29093, 2009 WL 800135
...scivious manner the breast, genitals, genital area, or buttocks, or the clothing covering them {or} did force or entice A.M. to so touch A.M. in that WAYNE BRUCE GAEDTKE did [touch] the clothing covering her vaginal area, contrary to Florida Statute 800.04(5)(a)(b)....
...-15-53, did then and there unlawfully and intentionally touch A.M., a person less than 12 years of age in a lewd and lascivious manner on or about her breasts, genitalia area or the clothing covering her genitalia area, contrary to Florida [S]tatute 800.04(a)(b)....
CopyPublished | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 885, 1987 Fla. App. LEXIS 6845
PER CURIAM. We affirm the appellant’s conviction and reject his contention that section 800.04, Florida Statutes (1985), is unconstitutionally vague when applied to children under sixteen years of age....
CopyPublished | Florida 3rd District Court of Appeal | 2017 WL 1076893, 2017 Fla. App. LEXIS 3781
...Proceedings in the Trial Court
A. Information vs. Incidents
In December 2012, the State filed an information alleging that Brugal
committed: five acts of lewd and lascivious battery upon victim A.D., a child over
12 but under 16 years of age, in violation of section 800.04, Florida Statutes
(2012); and three acts of lewd and lascivious molestation of A.D., in violation of
section 800.04(5)(c)2, Florida Statutes (2012)....
...lished that Brugal
9
touched the victim’s mouth, but not her “breast, genital, genital area, or buttocks,
or the clothing covering the breasts, genitals, genital area, or buttocks” as required
by section 800.04(5)(a) and the allegations in Count 8 of the information....
CopyPublished | Florida 1st District Court of Appeal
...dence in the outcome, we
reverse and remand for a new trial. Strickland v. Washington,
466
U.S. 668, 694 (1984).
Appellant was charged with one count of lewd or lascivious
molestation on a person older than 12 but less than 16, in violation
of section
800.04(5)(c)(2), Florida Statutes.
The State called the investigating detective as its first
witness....
CopyPublished | Florida 4th District Court of Appeal
...Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
GERBER, C.J.
The defendant appeals from his conviction for lewd or lascivious
exhibition in the presence of a victim who is less than sixteen years of age,
in violation of section 800.04(7)(b), Florida Statutes (2016)....
...The Defendant’s Motion for Judgment of Acquittal
After the state rested, the defendant moved for a judgment of acquittal.
One of the grounds raised was insufficient evidence that the defendant
was eighteen years of age or older when the offense occurred. See
§ 800.04(7)(b), Florida Statutes (2016) (“An offender 18 years of age or older
who commits a lewd or lascivious exhibition commits a felony of the second
degree ....
CopyPublished | Florida 4th District Court of Appeal | 2013 Fla. App. LEXIS 4440, 2013 WL 1136314
PER CURIAM. Alain Cupas appeals the denial of a rule 3.800(a) motion, which we have treated as a rule 3.850 motion. 1 Following a trial, Cupas was convicted of three counts of lewd or lascivious molestation in violation of section 800.04(5)(a), Florida Statutes (2007)....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 809, 1987 Fla. App. LEXIS 7321
fifteen year old daughter, in violation of section
800.04, Florida Statutes. We affirm. The guidelines
CopyPublished | Florida 4th District Court of Appeal
...October 1, 2014, and is a violation of s.
787.01(2) or s.
787.02(2), if the violation involved a victim who was a minor
and, in the course of committing that violation, the defendant
committed a sexual battery under chapter 794 or a lewd act
under s.
800.04 or s.
847.0135(5) against the minor; s.
787.01(3)(a) 2. or 3.; s.
787.02(3)(a) 2. or 3.; s.
794.011,
excluding s.
794.011(10); s.
800.04; or s....
...section
787.01(2) (kidnapping) or
787.02(2) (false
imprisonment), Florida Statutes, if in the course of committing the
kidnapping or false imprisonment the defendant committed a
sexual battery under chapter 794, Florida Statutes, or a lewd act
under section
800.04 or
847.0135(5), Florida Statutes, against the
victim;
b....
...section
787.01(3)(a)2. or (3)(a)3., Florida Statutes, (kidnapping
of a child under 13 with a sexual battery or lewd act);
4
3.704(d)(24)(A). As a separate qualifying offense, the rule lists “a violation
of . . . section
800.04, Florida Statutes, (lewd or lascivious offenses),”
making it clear that Millien’s offenses qualify for the adult-on-minor
multiplier....
...months in prison. Applying the multiplier, Millien’s LPS would be 385.5
months 2 in prison. The maximum sentence under section
775.082 for
Millien’s primary offense, lewd or lascivious battery on a child, is fifteen
years in prison (180 months). §
800.04(4)(b), Fla....
...section
787.02(3)(a)2. or (3)(a)3., Florida Statutes, (false imprisonment
of a child under 13 with a sexual battery or lewd act);
d. section
794.011, Florida Statutes, (sexual battery), excluding section
794.011(10);
e. section
800.04, Florida Statutes, (lewd or lascivious offenses); or
f....
CopyPublished | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 250, 2017 WL 823611, 2017 Fla. LEXIS 424
...SC15-2192,
2016 WL 934487, *1 (Fla. Mar. 9, 2016). We
now quash the decision below.
FACTUAL AND PROCEDURAL BACKGROUND
Wong was convicted of two counts of lewd or lascivious molestation against
a victim less than twelve years of age, §
800.04(5)(b), Fla. Stat., three counts of
lewd or lascivious molestation against a victim between twelve and sixteen years
of age, §
800.04(5)(c)(2), Fla. Stat., and one count of lewd or lascivious battery
against a victim less than sixteen years of age, §
800.04(4)(b), Fla....
...S.N.—over the course of differing time periods from 2000 to 2011.2 In addition,
with regard to a lewd or lascivious battery count involving S.N., the information
alleged Wong “plac[ed] the victim’s penis in his mouth . . . .”
2. Aside from section 800.04(5)(b) reclassifying the offense as a life felony
in 2005, see ch....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 3133, 2016 WL 803647
...conduct charge that is at issue.
The information alleged the defendant “intentionally touch[ed] [the
victim], a person under 16 years of age in a lewd or lascivious manner; or
solicit[ed] [the victim] to commit a lewd or lascivious act, in violation of
Florida Statute 800.04(6)(a)(b).” (Emphasis added). Pursuant to section
800.04(6), Florida Statutes (2012), lewd or lascivious conduct is defined
as the following:
(6) LEWD OR LASCIVIOUS CONDUCT.—
(a) A person who:
1....
...commits lewd or lascivious conduct.
(b) An offender 18 years of age or older who commits lewd or
lascivious conduct commits a felony of the second degree,
punishable as provided in s.
775.082, s.
775.083, or s.
775.084.
§
800.04(6)(a)–(b), Fla....
...sexual contact points instead of eighty sexual penetration points. Id. at
223.
Here, the third set of sexual contact points could be imposed only if
sexual contact was found to have occurred either because the crime
necessarily required it or the jury made such a finding. Because section
800.04(6)(a) offered two bases for finding a violation—solicitation (no
sexual contact) or touching (sexual contact)—without a finding that sexual
contact occurred, no sexual contact points could be assessed.
This conclusion is suppor...
CopyPublished | Florida 2nd District Court of Appeal | 2007 Fla. App. LEXIS 3066, 2007 WL 624735
...sex. For each of these four occasions, Mr. Holland was charged with two counts of lewd or lascivious battery — one count for oral sex performed by the juvenile on Mr. Holland and one count for oral sex performed by Mr. Holland on the juvenile. See § 800.04(4)(a), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2003 Fla. App. LEXIS 3722, 2003 WL 1236729
SALCINES, Judge. Warren Williamson appeals his conviction for lewd and lascivious act on a person under sixteen years of age in contravention of section 800.04(4), Florida Statutes (1991)....
...The State contends that although Williamson did not initiate the event, his active participation in its continuation provided the requisite intent necessary to establish a violation of law. There is no all-encompassing list of acts which would constitute a lewd or lascivious act under section 800.04....
CopyPublished | Supreme Court of Florida | 29 Fla. L. Weekly Supp. 111, 2004 Fla. LEXIS 417, 2004 WL 524907
...n affirmative defense and to reflect the permissive presumption of the existence of such knowledge that arises from proof of possession of a controlled substance. As to proposal 2, the Committee should reexamine the proposed instructions in light of section 800.04, subsections (2) and (3), Florida Statutes (2003). The Committee should revise the proposed instructions, where appropriate, to reflect the enumerated prohibited defenses as well as the other specified circumstances which cannot be raised as defenses to crimes charged under section 800.04....
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 2930, 2000 WL 282514
PER CURIAM. Vennis Smith challenges his conviction for a sexual act with a child under 16 years of age, a violation of section
800.04(3), Florida Statutes (1997), and his sentence entered pursuant to section
775.082(8), the Prison Releasee Reoffender Punishment Act....
CopyPublished | Florida 5th District Court of Appeal | 2007 Fla. App. LEXIS 3832, 2007 WL 776534
EVANDER, J. Rains appeals his conviction for lewd and lascivious battery of a twelve-year-old boy. He was charged pursuant to section 800.04(4)(a), Florida Statutes (2003)....
...It happened that fast.” On appeal, Rains first argues the trial court erred by refusing to give the Standard Jury Instruction for lewd and lascivious battery. However, the Standard Jury Instruction was adopted in 1981. In 1999, the Legislature significantly amended section 800.04....
...mpossible to determine that there was no reasonable possibility that the jury was mislead by that instruction. .The Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted a proposed jury instruction for amended section 800.04....
CopyPublished | Florida 2nd District Court of Appeal | 2006 WL 625865
...Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee. WHATLEY, Judge. Jose Luis Castaneda was convicted of committing a lewd or lascivious battery on a child less than sixteen but older than twelve years of age in violation of section 800.04(4)(a), Florida Statutes (2004)....
...Castaneda appeals the order designating him to be a sexual predator and the State concedes error. In Hickey v. State,
915 So.2d 663, 663 (Fla. 2d DCA 2005), this court held that in order to be designated a sexual predator under section
775.21(4), a person convicted under section
800.04 must meet either of two criteria. First, the offense must be a first-degree felony violation, or an attempt thereof, of section
800.04. Id. "Alternatively, the offense must be any felony violation, or attempt thereof, of section
800.04 and the offender must previously have been convicted of or pleaded to a violation of a crime specified in section
775.21(4)(a)(1)(b)." Id. In the present case, Castaneda was convicted of a second-degree felony violation of section
800.04(4)(a), and he had no previous convictions of the specified predicate offenses....
CopyPublished | Florida 3rd District Court of Appeal
...denying Loor’s request to waive counsel, and remand for a new trial and Faretta
hearing.
I. FACTUAL AND PROCEDURAL HISTORY
On December 12, 2012, Loor was charged with one count of lewd and
lascivious molestation of a person less than twelve (12) years of age under section
800.04(5)(b), Florida Statutes (2012), and one count of sexual battery on a victim
less than twelve (12) years of age under section
794.011(2), Florida Statutes
(2012)....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 996524, 2014 Fla. App. LEXIS 3604
...y A.Z. to the CPT inter *650 viewer. Ramirez was thereafter arrested and charged with sexual battery under section
794.011(2)(a), Florida Statutes, for “placing his fingers inside the vagina of A.Z.” and with lewd or lascivious molestation under section
800.04(5)(b), Florida Statutes, for “touching] the breast, genitals, genital area, or buttocks, or the clothing covering them, of A.Z.” The case went to trial in October 2012....
...See Hobbs v. State,
999 So.2d 1025 (Fla.2008); Bradley v. State,
918 So.2d 337 (Fla. 1st DCA 2005). The statute provides in pertinent part: In any criminal action in which the defendant is charged with a crime against a victim under s.
794.011; s.
794.05; s.
800.04; s....
...ct evidence of each element of sexual battery and lewd or lascivious molestation through A.Z.’s testimony (at trial and through the CPT interview) that a man inserted his fingers into her vagina when she was four years old. See §§
794.011(2)(a),
800.04(5)(b), Fla....
CopyPublished | District Court of Appeal of Florida | 1967 Fla. App. LEXIS 5005
...The State seeks review of a criminal court order quashing an information. See: §
924.07(1), Fla.Stat., F.S.A. The information charged the appellee with a felony by committing a lewd, lascivious or indecent act in the presence of a female child of less than fourteen years of age, in violation of §
800.04 Fla.Stat., F.S.A....
...The appellee moved to quash the information, contending that the alleged acts, at most, constituted an offense as a misdemeanor under §
800.03, Fla.Stat., F.S.A., which motion was granted. 1 The information, as drawn, charged a crime within the purview of §
800.04 Fla....
CopyPublished | Florida 4th District Court of Appeal
...On or after July 1, 2007, [he] has been adjudicated
delinquent for committing . . . any of the criminal offenses
proscribed in the following statutes in this state . . . when the
juvenile was 14 years of age or older at the time of the offense:
...
(III) Section 800.04(5)(c) 1....
...(2014).
Here, the juvenile qualifies as a sexual offender under the plain
language of the statute because he was fifteen years old at the time of the
offense, was adjudicated delinquent in 2014, and the court found the
molestation involved unclothed genitals.
Because the juvenile violated section 800.04(5)(c)1., Florida Statutes
(2014), the registration statute required the court to make written findings
of “the age of the offender at the time of the offense”; “the age of the victim
at the time of the offense”; whether the off...
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 3586, 2015 WL 1071057
EVANDER, J. M.B. was adjudicated delinquent of four counts of lewd or lascivious molestation of two children under the age of twelve, in violation of section 800.04(5)(c)l, Florida Statutes (2012)....
...mpting, 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: (III) Section 800.04(5)(c)l....
...registration is not required by the explicit terms of that particular subparagraph, then a juvenile is not obliged to register”). Here, as the State properly concedes, M.B. could only be required to register as a- sexual offender for violations of section 800.04(5)(c)l....
CopyPublished | Florida 5th District Court of Appeal | 2015 WL 1071158
...twelve by a person under the age of eighteen in violation of section
794.011(2), Florida Statutes (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....
...ervision....
938.10 Additional court cost imposed in cases of certain crimes.— (1) If a person pleads guilty or nolo contendere to, or is found guilty of, regardless of adjudication, any offense against a minor in violation of ... chapter 794 ..., s.
800.04 ..., the court shall impose a court cost of $101 against the offender in addition to any other cost or penalty required by law....
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 2193, 2009 WL 633197
...He was tried before a jury on two counts: sexual battery on a person twelve years of age or older, a second-degree felony violation of section
794.011(5), Florida Statutes (2006); and lewd and lascivious molestation, a second-degree felony violation of section
800.04(5)(a), Florida Statutes (2006)....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 2284, 1992 WL 45046
...Accordingly, we reverse Jory’s sentences and remand this cause for resen-tencing in accordance with Flowers and Karchesky . Convictions AFFIRMED; sentences REVERSED; and REMANDED for resen-tencing. GOSHORN, C.J., and COBB and GRIFFIN, JJ., concur. . § 800.04(2), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 2601, 2000 WL 263137
...and III constitute double jeopardy because the same conduct formed the basis of both counts. See Audano v. State,
641 So.2d 1356 (Fla. 2d DCA 1994). In addition, we note that Folk’s judgment lists an incorrect statute for count II, which should be section
800.04(1)....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 557, 1988 Fla. App. LEXIS 744, 1988 WL 15455
PER CURIAM. The defendant was convicted of committing a lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (Supp.1984)....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 2054115, 2012 Fla. App. LEXIS 9189
...tion
943.0435(l)(a), Florida Statutes (2007), which provides for the registration of sexual offenders with the Department of Law Enforcement. In circuit court case number CRC08-16250CFANO, Moulton entered a guilty plea to lewd or lascivious conduct, §
800.04(6), Fla. Stat. (2007), lewd or lascivious exhibition, §
800.04(7), and contributing to the delinquency of child, §
827.04(1), Fla. Stat. (2007). On the form “Findings on Specified Sex Offenses,” section A is correctly completed, but sections B and C of the form are checked, incorrectly indicating that Moulton was convicted of lewd or lascivious battery, §
800.04(4), and lewd or lascivious molestation, §
800.04(5)....
CopyPublished | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 7889, 2001 WL 627434
...State,
752 So.2d 19 (Fla. 5th DCA 2000); Fuller v. State,
540 So.2d 182 (Fla. 5th DCA 1989). We therefore reverse and remand for a new trial. Caraballo; Quaggin; Fuller. REVERSED AND REMANDED. PLEUS, J., concurs. PETERSON, J., concurs specially with opinion. . §
800.04(4), Fla....
...The informations state: On September 01, 1999, LAMAR JAY FULLMER did knowingly commit a lewd and lascivious act in the presence of [victim(s) and age(s)] a child under sixteen (16) years, by touching, rubbing his penis, masturbating in the presence of [victim(s)] contrary to Section 800.04, Florida Statutes .... (Emphasis supplied) Section 800.04(4), entitled "Lewd, lascivious, or indecent assault or act upon or in the presence of a child,” provided: Any person who: (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(4), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 5662, 1994 WL 248047
...esence of a child under the age of 16 years. He argues that the evidence did not prove he knowingly exposed himself in a lewd or lascivious manner. We agree and reverse. Durant was charged with two counts of committing a lewd or lascivious act under section 800.04(4), Florida Statutes (1991)....
...Likewise, exposure of one’s private parts does not qualify unless the circumstances show a lewd or lascivious intent. Egal v. State,
469 So.2d 196 (Fla. 2d DCA) (Frank, J., dissenting), review denied,
476 So.2d 673 (Fla.1985). To support a conviction under section
800.04(4), the evidence must prove some degree of “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.” Egal,
469 So.2d at 197 (citations omitted)....
CopyPublished | Florida 5th District Court of Appeal | 2008 WL 2309012
...Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee. COHEN, J. Nathaniel Beatty appeals his sentence as an adult for two counts of lewd and lascivious molestation upon a child in violation of section 800.04(5)(c), Florida Statutes (2005)....
CopyPublished | Florida 1st District Court of Appeal
...or older but less
than 16 years of age, and two counts of contributing to the
delinquency of a child. The molestation counts constituted second-
degree felonies, punishable up to fifteen years in prison. See
2
§§
800.04(5)(c)2.,
775.082(3)(d), Fla....
...• 0.00 for “Victim Injury”; and,
• 0.00 for “Enhancements”
This scoring contains numerous errors and omissions. First,
the scoresheet lists the wrong primary offense. Instead of lewd or
lascivious molestation under subsection (5) of section 800.04, the
scoresheet lists lewd or lascivious conduct under subsection (6).
While lewd or lascivious molestation and lewd or lascivious
conduct are both second-degree felonies, the former is a “Level 7”
offense whereas the latter is a “Level 6” offense....
CopyPublished | Florida 2nd District Court of Appeal | 1982 Fla. App. LEXIS 20218
was charged with and convicted of violating Section
800.04, Florida Statutes, by knowingly committing
CopyPublished | Supreme Court of Florida
...Section
794.011(1)(h), Florida Statutes (2016),
defines “sexual battery” 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 other object,” while section
800.04(5)(a) defines lewd or lascivious molestation as when a
perpetrator “intentionally touches in a lewd or lascivious manner
the breasts, genitals, genital area, or buttocks, or the clothing
covering them, of a person less than 16 ye...
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 10316, 2011 WL 2578577
...Summa, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant challenges his conviction and sentence for lewd or lascivious molestation pursuant to section 800.04(5), Florida Statutes (2007)....
CopyPublished | Florida 4th District Court of Appeal
...ourt, the State recognized that
the judgment was incorrect. Appellant’s convictions for sexual battery
upon a child are capital felonies, §
794.011(2)(a), Fla. Stat. (2011), and his
conviction for lewd and lascivious molestation is a life felony, §
800.04(5)(b), Fla....
CopyPublished | Florida 5th District Court of Appeal | 1994 WL 236385
...at least under the current law in this state. Jory's persecution argument also misses the point. It is his illegal sexual involvement with a minor that is targeted, nothing more. While it is true that Jory would have been acquitted *154 of violating section 800.04 had the jury believed the victim's testimony that he was 16 when he had sex with Jory, the fact remains that the jury determined otherwise and the evidence supports its finding....
...Premeditation & Calculation The trial court stated: This reason for departure is not an inherent component of the crimes charged in Counts I through X of the Information. The defendant was convicted of ten counts of lewd and lascivious acts upon a child under section
800.04(2), Florida Statutes (1987) which read "any person who commits an act as defined as sexual battery under section
794.011(1)(h) upon a child under age of sixteen ..." In Lerman v....
...Here, Jory did not deny that the sexual acts had occurred but maintained his "innocence" because he believed that such acts should not or did not constitute a crime. At the trial, the victim testified that he was sixteen at the time he had sex with Jory. If this were true, Jory would not be guilty of violating section 800.04, which prohibits a lewd assault on a child under the age of sixteen years....
...Because the five reasons given for the departure sentences in this case are either improper or not established by a preponderance of the evidence in the record, I would vacate the sentences imposed and remand for resentencing within the guidelines. NOTES [1] § 800.04(2), Fla....
...[6] The victim testified at trial that he was actually 16 when the tape was made, and that he consented to the sex acts which were filmed. Had he proved to be 16 years old, consent would have been a complete defense to the ten sexual assault counts. See § 800.04(2), Fla. Stat. (1987). [1] § 800.04(2), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 3238157, 2013 Fla. App. LEXIS 10314
..., J. Appellant, Freddie Felder [“Felder”], appeals his sentence of life in prison as a dangerous sexual offender after conviction of lewd and lascivious battery on a person twelve years of age, but less than sixteen years of age, in violation of section 800.04(4)(a), Florida Statutes (2010)....
...n offense that is a felony in another jurisdiction, or for an offense that would be a felony if that offense were committed in this state; or (e) Has previously been convicted of a violation of s.
787.025(2)(c); s.
794.011(2), (3), (4), (5), or (8); s.
800.04(4) or (5); s....
CopyPublished | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 8838, 2009 WL 1809928
...Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee. *696 PLEUS, JR., R., Senior Judge. Jeffrey McDonald entered an open plea of no contest to lewd or lascivious molestation, a first-degree felony under section 800.04(5)(a)-(b), Florida Statutes (1999)....
...We agree with the trial court's determination that the offense to which he pled was a first-degree felony but remand for a minor correction. McDonald contends that since the information alleged he molested his daughter "on or between 1998 through 2007," he must be sentenced under the most lenient version of section 800.04 in effect during that period. The most lenient version defined the crime of "lewd, lascivious, or indecent assault" as a second-degree felony. § 800.04(1), Fla. Stat. (1997). Substantial revisions that became effective October 1, 1999, redefined the crime and reclassified "lewd or lascivious molestation" as a first-degree felony. § 800.04(5)(a)-(b), Fla. Stat. (1999). The statute was again amended effective September 1, 2005, to reclassify the offense as a first-degree felony punishable by life imprisonment. § 800.04(5)(a)-(b), Fla. Stat. (2005). We reject McDonald's argument because there was ample evidence that he molested the child several times between October 1, 1999, and August 31, 2005, when the version of section 800.04 classifying the offense as a first-degree felony was in effect....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 6691
...We reverse for the reasons which follow. The State filed a petition for delinquency against J.M. after he was charged with sexual battery upon a minor. J.M. entered an admission to the reduced charge of lewd and lascivious act upon a person under the age of 16 pursuant to section 800.04, Florida Statutes (1993)....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 8534, 1999 WL 420369
...crime. 3 See Williams v. State,
594 So.2d 273, 274 (Fla.1992); Shaw v. State,
637 So.2d 254 (Fla. 2d DCA 1994); Attach v. State,
634 So.2d 254 (Fla. 2d DCA 1994). Sentence VACATED; REMANDED for resentencing. GRIFFIN, C.J., and ANTOON, J., concur. . §
800.04(4), Fla. Stat. (1993). . §
800.04(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 6744, 18 Fla. L. Weekly Fed. D 1502
...When arrested, some of the girls’ panties were in Roberts’s possession. *1083 In counts 12, 16, 19, and 24, the state charged Roberts with four counts of a lewd and lascivious act in the presence of a child under sixteen years of age pursuant to section 800.04(4), Florida Statutes (Supp....
CopyPublished | Florida 2nd District Court of Appeal | 1994 WL 278155
...Gen., Tallahassee, and Roberta G. Mandel, Asst. Atty. Gen., Miami, for appellee. *1056 RYDER, Acting Chief Judge. Jerrid Conyers was charged with the crime of committing a lewd and lascivious act upon a child under the age of sixteen, a violation of section 800.04(2), Florida Statutes (1991). Conyers filed a motion to dismiss arguing the aforementioned statute was unconstitutional. The trial court denied Conyers's motion and upheld the constitutionality of section 800.04(2)....
...In both cases, we cited to the Fifth District's well-reasoned opinion in Jones v. State,
619 So.2d 418 (Fla. 5th DCA 1993), which now has been approved by our supreme court in Jones v. State,
640 So.2d 1084 (Fla. 1994). In so affirming the constitutionality of section
800.04, the court observed "[t]he rights of privacy that have been granted to minors do not vitiate the legislature's efforts and authority to protect minors from conduct of others......
CopyPublished | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 7806, 2000 WL 799369
PER CURIAM. Robert Charles Blackburn appeals his conviction and sentence for one count of lewd and lascivious assault upon a child under 16 years of age. § 800.04(1), Fla....
CopyPublished | Supreme Court of Florida | 2013 Fla. LEXIS 1931, 2013 WL 3064823
...felony offender.” §
794.0115, Fla. Stat. (2012). First, the defendant must have been convicted of violating one of the statutory provisions set out in section
794.0115(2) — i.e., section
787.025(2)(c); section
794.011(2), (3), (4), (5), or (8); section
800.04(4) or (5); section
825.1025(2) or (3); section
827.071(2), (3),’ or (4); or section
847.0145; or of any similar offense under a former designation....
...da, for an offense that is a felony in another jurisdiction, or for an offense that would be a felony if that offense were committed in Florida; or (e) previously been convicted of violating sections
787.025(2)(c),
794.011(2), (3), (4), (5), or (8),
800.04(4) or (5),
825.1025(2) or (3),
827.071(2), (3), or (4), or
847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another juri...
CopyPublished | Florida 4th District Court of Appeal
...4th DCA 2011)).
The Lewd and Lascivious Molestation Sentences
Appellant argues that his concurrent sentences to life with a twenty-
five year mandatory minimum on the molestation counts are illegal.
Appellant correctly points out that while a violation of section
800.04(5)(b)
Florida Statutes, is a life felony, the offense is subject to a specific
sentencing statute, section
775.082(3)(a)4.a., Florida Statutes (2016).
That sentencing statute states:
Except as provided in sub-subparagraph b.,[ 1] for a life felony
committed on or after September 1, 2005, which is a violation
of s.
800.04(5)(b), by:
(I) A term of imprisonment for life; or
(II) A split sentence that is a term of at least 25 years’
imprisonment and not exceeding life imprisonment, followed
1 Sub-subparagraph b. is inapplicable to Appellant because it pertains to a
second or subsequent violation of section
800.04(5)(b), see §
775.082(3)(a)4.b.,
Fla....
...person’s natural life, as provided in s.
948.012(4).
§
775.082(3)(a)4.a., Fla. Stat. (2016). Citing Hernandez v. State,
162 So.
3d 130, 131 (Fla. 4th DCA 2014), Appellant correctly argues that the two
possible sentences for a life felony violation of section
800.04(5)(b), are:
“either a life sentence or a split sentence” involving at least twenty-five
years imprisonment followed by the remainder of the defendant’s life on
probation....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 8123, 1999 WL 397132
FULMER, Judge. Gary Harding appeals his conviction for three counts of lewd sexual battery in violation of section 800.04(3), Florida Statutes (1995)....
CopyPublished | District Court of Appeal of Florida | 1968 Fla. App. LEXIS 5271
The appellant was charged with a violation of §
800.04, Fla.Stat. (1967), F.S.A., entitled “Lewd, lascivious
CopyPublished | Court of Appeals for the Eleventh Circuit
...App’x at 553. He was
sentenced to 240 months in prison as an armed career criminal. Id. Harris
achieved that status by being convicted twice for selling cocaine and once for
sexual battery of a child under the age of sixteen in violation of Fla. Stat. §
800.04(3) (1996) (amended 1999).2 Id....
...The government proved all three crimes
“by submitting certified copies of Harris’ convictions, which were based on guilty
pleas.” Id. at 553–54.
One issue we decided in reviewing Harris’ sentence was whether his sexual
battery conviction under Fla. Stat. § 800.04(3) was a violent felony within the
meaning of § 924(e)(2)(B)(i). See id. at 554–56. Harris had been convicted under
the 1996 version of § 800.04(3), which provided:
800.04....
...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 . . . is guilty of a felony of
the second degree . . .
Id. at 555 (quoting Fla. Stat. §
800.04(3) (1990–1996)). That version of the statute
2
The relevant statutory provision has since been rewritten and renumbered. See Fla.
Stat. §
800.04(4) (2008)....
...not do him any good because the district
court concluded that statutory rape is a crime of violence. Id. at 555. We reached
the same conclusion and held that “under this Court’s minimal physical contact
requirement, a violation of Fla. Stat. § 800.04(3) (1996) is a violent felony.” Id....
...The government now concedes that Harris’
sexual battery conviction is not a “violent felony” under § 924(e)(2)(B)(i), and we
accept that concession for purposes of this case.3
Left for us to decide is whether Harris’ conviction under § 800.04(3)
3
The Florida statute on which Harris’ conviction was based could be violated by the
“union with ....
...fore us the government represented
(correctly under the law of the circuit as it then existed) that it was unnecessary for
us to consider that clause. See Br. of Appellee (filed Aug. 20, 2008) at 18
(“Because Harris’s conviction for violating section 800.04(3) falls squarely within
the ambit of 18 U.S.C....
...en “even when the act
was unintentional and the victim factually consented to the act.” Supp. Br. of
Appellant at 12. He points out the possibility of “factual consent” because legal
consent is impossible under the statute. See Fla. Stat. §
800.04 (1996) (“Neither
the victim’s lack of chastity nor the victim’s consent is a defense to the crime
proscribed by this section.”). It makes no difference for conviction purposes if the
perpetrator believes that the victim has in fact “consented.” See Jones v. State,
640
So.2d 1084, 1086 (Fla. 1994) (“The legislature enacted section
800.04 based on a
morally neutral judgment that sexual intercourse with a child under the age of
13
sixteen, with or without consent, is potentially harmful to the child.” (quotation
marks and citation omitted)); cf....
...Chavarriya-Mejia,
367 F.3d 1249,
1251 (11th Cir. 2004) (“Because Kentucky law presumes that underage children
are incapable of consent, statutory rape necessarily involves a sexual act performed
‘against’ the child.”). A person could be convicted of violating Fla. Stat. §
800.04(3) without the actual use of physical force on the victim because the victim
“factually consented.” That alone, however, does not automatically mean that the
crime is outside of the scope of the residual clause. “As long as [a violation of Fla.
Stat. §
800.04(3) is] an offense . . . that, by its nature, presents a serious potential
risk of injury to another” it meets the threshold requirements. James,
550 U.S. at
209,
127 S.Ct. at 1597 (emphasis added). So we must first determine whether the
§
800.04(3) offense meets those requirements.
We have already half-answered that question. In United States v.
Rutherford,
175 F.3d 899 (11th Cir. 1999), we held that a violation of Fla. Stat. §
800.04 “‘involves conduct that presents a serious potential risk of physical injury
to another.’” Id....
...ion, but it involved
language that is the same as that in the residual clause we are applying. Id.
The defendant in Rutherford had been convicted of violating the 1993
14
version of Fla. Stat. § 800.04, which contained a provision identical to the one that
Harris was convicted of violating in 1996....
...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. . . .
Id. at 905 n.3 (quoting Fla. Stat. § 800.04 (1993)).8
The record did not indicate which subsection of § 800.04 Rutherford had
been convicted of violating, but we concluded that it did not matter....
...at 904–05.
We reasoned that the conduct described in all of that statute’s subsections
“involves a substantial risk that physical force may be used against the victim in
the course of committing the offense.” Id. at 905 (quoting Ramsey v. 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)....
...sexual organ of another or the anal or vaginal penetration of another by any other object . . . .”).
15
F.3d 580, 583 (11th Cir. 1995). We held, therefore, that the defendant’s prior
conviction under Fla. Stat. §
800.04 was properly considered a prior conviction for
career offender purposes under U.S.S.G....
...2007) (“Alternatively, and as an independent
basis for our holding, we conclude that second degree rape of a minor, under
Alabama law, at a minimum ‘presents a serious potential risk of physical injury to
another,’ as provided under § 4B1.2(a)(2).”).9 We have already held, then, that an
offense under Fla. Stat. § 800.04 presents a serious risk of physical injury to
another....
...ry’ to the minors under U.S.S.G. §
4B1.2(1)(ii) and has held that the offenses at issue are ‘crimes of violence.’”
(listing cases)). All of this leads us to conclude that sexual battery of a child under
sixteen in violation of Fla. Stat. § 800.04(3) (1996) is a crime that presents a
serious potential risk of physical injury.
3.
That would seem to be the end of the matter, but it is not. We must also
decide if a violation of Fla. Stat. § 800.04(3) (1996) is a crime “roughly similar, in
kind as well as in degree of risk posed” to burglary, arson, extortion, and crimes
involving the use of explosives....
...Picking up on the Begay yarn, Harris weaves the argument that his crime of
sexual battery of a child under the age of sixteen is a strict liability crime with no
mens rea requirement, just like the DUI crime in Begay. The government is unable
to dispute that. See Fla. Stat. §
800.04; State v. Sorakrai,
543 So. 2d 294, 295 (Fla.
2d DCA 1989) (“It is our judgment that conduct violative of section
800.04 carries
with it the same concept of ‘strict liability’ that has traditionally characterized
‘statutory rape.’ Thus, we are persuaded that section
794.021 forecloses [the
defendant] from a defense based upon the victim’s mi...
...the ACCA’s definition of
violent felony.” McDonald,
592 F.3d at 814.
The difficulty in the present case lies in the fact that the Florida statute at
issue covers a wide array of conduct. It is true that, as Harris asserts, Fla. Stat. §
800.04(3) “impose[s] strict liability, criminalizing conduct in respect to which the
offender need not have had any criminal intent at all.” Begay, 553 U.S....
...broad range of conduct, we cannot say that a violation of it typically involves
“purposeful, ‘violent,’ and ‘aggressive’ conduct,” Begay,
553 U.S. at 144–45,
128
S. Ct. at 1586. For that reason, we conclude that a violation of Fla. Stat. §
800.04(3)(1996) generally—without further specifics—is not a crime of violence
under the ACCA’s residual clause....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 7856, 1999 WL 391497
...We reverse the sentence and remand for re-sentencing upon correction of the guidelines scoresheet. Affirmed in part, reversed in part, and remanded for resentencing with directions. FULMER, A.C.J., and WHATLEY and STRINGER, JJ„ Concur. . See §
794.011, Fla. Stat. (1995). . See §
800.04, Fla....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 15263
ERVIN, Judge. Appellant, charged with two offenses, following trial was convicted of four. He appeals. We reverse in part. Appellant was charged in one count with the lewd, lascivious assault upon a child under the age of 14, contrary to Section 800.04, Florida Statutes (1977), and in count two with the same act on another child....
CopyPublished | Florida 4th District Court of Appeal | 2003 Fla. App. LEXIS 10213, 2003 WL 21537113
...For example, the statute under which Fretwell was convicted, provides: A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them ... commits lewd or lascivious molestation. § 800.04(5)(a), Fla....
...ocks of a child is lewd behavior, it is by definition, sexual behavior, and as such, can constitute sexual contact for the purpose of assessing victim injury points. The law that controlled the decision in Borjas pre-dated a 1999 statutory change to section 800.04, which for the first time defined in detail the forms of touching proscribed as molestation under the statute. § 800.04, Fla....
CopyPublished | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 1657, 1987 Fla. App. LEXIS 9149
...On October 13, 1985, defendant engaged in sexual intercourse with the twelve year old daughter of his live-in girlfriend. As a result of this single act of intercourse, defendant was charged with and convicted of section
794.05, Florida Statutes (1985) (carnal intercourse with an unmarried person under eighteen), section
800.04(2), Florida Statutes (1985) (commission of an act defined as sexual battery upon a child under sixteen), and section
800.04(1), Florida Statutes (1985) (lewd assault or act upon a child under sixteen). As a result of two subsequent, separate and distinct acts of sexual intercourse with this same victim, the defendant was likewise charged and convicted of two more counts of section
794.05, two more counts of section
800.04(2), and two more counts of section
800.04(1)....
...In the instant case, the victim was a child twelve years of age. Therefore, when the defendant was charged with sexual battery under section
794.05, Florida Statutes (1985) (carnal intercourse with an unmarried person under eighteen), the charges under section
800.04(1) and section 800.-04(2) were simply redundant as they were lesser included offenses of the charge of sexual battery, section
794.05....
...down into nine separate counts), there can be only three valid convictions for the three separate acts of sexual intercourse. *404 We affirm the three convictions under section
794.05, Florida Statutes (1985) and reverse the three convictions under section
800.04(1), Florida Statutes (1985), and the three convictions under section
800.04(2), Florida Statutes (1985). AFFIRMED IN PART; REVERSED IN PART. DAUKSCH and COBB, JJ., concur. . State v. Hightower,
509 So.2d 1078 , (Fla.1987) holds that section
800.04 is not a lesser included offense of section
794.011(2)....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 1501, 1986 Fla. App. LEXIS 8751
NIMMONS, Judge. Appellant was found guilty of committing a lewd and lascivious assault upon a twelve year old girl in violation of Section 800.04, Florida Statutes (1981), and sentenced to fifteen years incarceration....
CopyPublished | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 319, 2016 Fla. LEXIS 1428, 2016 WL 4168765
...The record in this case indicates that Y.V. wore a shirt and shorts in the pool, not a bathing suit. . The elements of that crime are, in relevant part: the (1) intentional (2) touching (3) of the breasts, genitals, or buttocks (4) in a lewd or lascivious manner. § 800.04(5)(a), Fla....
CopyPublished | Supreme Court of Florida
...community control for offenders specified in this section.
(1) Effective for probationers or community controllees whose
crime was committed on or after October 1, 1995, and who are placed
under supervision for violation of chapter 794, s. 800.04, s....
...As to the first, although he was charged with
lewd and lascivious molestation,3 Villanueva was convicted of the lesser-included
3. The elements of that crime are, in relevant part: the (1) intentional (2)
touching (3) of the breasts, genitals, or buttocks (4) in a lewd or lascivious manner.
§ 800.04(5)(a), Fla....
...The statute provides in
pertinent part that:
(1) Effective for probationers or community controllees whose
crime was committed on or after October 1, 1995, and who are placed
under supervision for violation of chapter 794, s. 800.04, s....
CopyPublished | Florida 1st District Court of Appeal
...Because
Graham’s convictions are based on distinct acts and the trial court properly limited
cross-examination, we affirm.
Graham was convicted of two counts of lewd or lascivious molestation for
touching the victim’s breasts and buttocks, or the clothing covering them, in
violation of section 800.04(5)(a), Florida Statutes (2013)....
...of a separate character and type requiring different elements of proof” do not violate
double jeopardy because the acts are “distinct criminal acts that the Florida
Legislature has decided warrant multiple punishments.” Meshell, 2 So. 3d at 135;
§§
794.011(1)(h),
800.04(1)(a), Fla....
...molestation statute also provides multiple, alternative ways to violate the statute.
The statute proscribes the intentional touching “in a lewd or lascivious manner the
breasts, genitals, genital area, or buttocks, or the clothing covering them . . . .” §
800.04(5)(a), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2001 Fla. App. LEXIS 9201, 2001 WL 753798
...On the commitment order, the two battery adjudications were classified as first-degree misdemeanors while the lewd act adjudication was classified as a second-degree felony. The lewd act charge arose out of an incident occurring on October 4, 1999, three days after the effective date of revisions to section 800.04, Florida Statutes (1997). Ch. 99-201, § 4, at 834-36; § 17, at 849, Laws of Fla. Under the prior statutory framework, the lewd act offense for which J.L.B. was charged and on which he was adjudicated delinquent 3 was a second-degree felony. See § 800.04, Fla. Stat. (1997). However, under the statute applicable at the time of J.L.B.’s offense, the lewd act for which he was charged and on *1140 which he was adjudicated delinquent was a third-degree felony. See § 800.04(5)(a), (d), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2001 Fla. App. LEXIS 9213, 2001 WL 753878
...The prosecution recalled Reynolds in rebuttal to deny these conversations. Myers first challenges the denial of his motion for judgment of acquittal. He contends that since the child was asleep throughout the entire incident, there could be no offense under section 800.04(2), Florida Statutes (1997), which provides that a person who: (2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of the genita...
...es or entices the child to commit any such act; [[Image here]] without committing the crime of sexual battery, commits a felony of the second degree.... Myers relies on State v. Werner,
609 So.2d 585 (Fla.1992), wherein the supreme court interpreted section
800.04(3), Florida Statutes (1987), which made it unlawful to commit any lewd or lascivious act in the presence of a child....
CopyPublished | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 6643, 1994 WL 321596
...e he failed to renew his objection at trial after the court denied the motion in limine. Correll v. State,
523 So.2d 562 (Fla.), cert. denied,
488 U.S. 871 ,
109 S.Ct. 183 ,
102 L.Ed.2d 152 (1988). Finally, we point out that the constitutionality of section
800.04, prohibiting a consent defense, has been decided contrary to Chapman’s position. Jones v. State,
640 So.2d 1084 (Fla.1994). Affirmed in part, reversed in part, and remanded. THREADGILL, A.C.J., and LAZZARA, J., concur. . §
794.011(2), Fla.Stat. (1989). . §
800.04(1), Fla.Stat....
CopyPublished | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 423, 2007 Fla. LEXIS 1192, 2007 WL 1932238
...(2) Lunsford Act Proceedings. When a probationer or community eontrollee is arrested for violating his or her probation or community control in a material respect and is under supervision for any criminal offense proscribed in chapter 794, Florida Statutes, section
800.04(4), Florida Statutes, section
800.04(5), Florida Statutes, section
800.04(6), Florida Statutes, section
827.071, Florida Statutes, or section
847.0145, Florida Statutes, or is a registered sexual predator or a registered sexual offender, or is under supervision for a criminal offense for which, but for the e...
CopyPublished | Florida 5th District Court of Appeal | 1996 Fla. App. LEXIS 7158, 1996 WL 372235
...We remand for reim-position of the investigative costs, if appropriate, once the state complies with section 939.01(1). See Reyes v. State,
655 So.2d 111, 119 (Fla. 2d DCA 1995). Judgment and Sentence AFFIRMED; Investigative Costs STRICKEN; and REMANDED. PETERSON, C.J., and DAUKSCH and THOMPSON, JJ., concur. . §
800.04(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 3927681, 2013 Fla. App. LEXIS 11999
...ally force or entice J.F. (A MINOR), a person less than twelve (12) years of age, to touch the breasts, genitals, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks of said defendant, in violation of 800.04(5)....” Sections 800.04(5)(a) and (b), Florida Statutes (2006) provide: (5) Lewd or lascivious molestation.— (a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a...
...s or entices a victim to touch the defendant in an area of the body prohibited by statute. At the time of the trial, the standard jury instruction for lewd or lascivious molestation provided in pertinent part: 11.10(c) LEWD OR LASCIVIOUS MOLESTATION § 800.04(5), Fla....
...dard jury instruction 1 addressing the very infirmity raised by Shaw during the charge conference. The amended standard jury instruction, as applied to the allegations in this case, now reads in relevant part: 11.10(c) LEWD OR LASCIVIOUS MOLESTATION § 800.04(5), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 11397, 2015 WL 4549626
...He claimed
the predicate conviction used to qualify him as a DSFO was insufficient.
The State responded, and the trial court summarily denied the motion. He
now appeals the order denying his motion.
The defendant argued in his motion that he did not qualify as a DSFO
because his prior conviction under section
800.04, Florida Statutes (1981),
did not contain elements similar to section
800.04(4), Florida Statutes
(2005) (lewd or lascivious battery), or section
800.04(5), Florida Statutes
(2005) (lewd or lascivious molestation). We disagree.
The DSFO statute enumerates various qualifying prior offenses,
including violations of sections
800.04(4) and (5), but also includes “any
offense under a former statutory designation which is similar in elements
to an offense described in this paragraph.” §
794.0115(2)(e), Fla. Stat.
(2005). The defendant’s 1981 conviction was for a violation of a former
version of section
800.04, which provided:
Any person who shall handle, fondle or make an assault upon
any child under the age of 14 years in a lewd, lascivious or
indecent manner, or who shall knowingly commit any lewd or
lascivious act in the presence of such child, without the intent
to commit sexual battery shall be guilty of a felony of the
second degree, punishable as provided in s.
775.082, s.
775.083 or s.
775.084.
§
800.04, Fla. Stat. (1981).
In 2005, section
800.04 provided, in relevant part:
(4) LEWD OR LASCIVIOUS BATTERY.—A person who:
....
(b) Encourages, forces, or entices any person less than 16
years of age to engage in . . . any other act involving sexual
activity commits lewd or lascivious battery, a felony of the
second degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084.
§
800.04(4), Fla....
...elements. To
determine if the statutes are similar, we focus on their similarities and not
their dissimilarities. And, there are similarities between the 1981 and
2005 statutes.
Both statutes proscribe the lewd or lascivious touching of a child.
Section 800.04 (1981) prohibited “any person from making “an assault
upon any child under the age of 14 years in a lewd, lascivious or indecent
manner. . . .” Section 800.04(4)(b) (2005) defines a lewd or lascivious
battery as encouraging, forcing or enticing “any person less than 16 years
of age to engage in ....
...with coercing an 11-year-old boy
to allow the defendant to perform oral sex on him. That conduct is
proscribed by subsection (4)(b) of the 2005 statute. Thus, had the same
crime been committed in 2005, it would have satisfied the similar elements
of section 800.04(4)(b).
We agree with the State, while not identical, the statutes are similar.
The court did not err in finding the defendant to be a DSFO and imposing
a twenty-five-year mandatory minimum sentence.
The defendant relies on Durant v....
...age to
engage in an act that constitutes sexual battery by a person who is in a
position of familial or custodial authority.” Id. at 670. In designating the
defendant as a DSFO, the trial court relied upon a predicate conviction for
a violation of section 800.04(1), Florida Statutes (1995). That section is
nearly identical to the 1981 version of section 800.04.
Section 800.04(1) (1995) made it a second degree felony to “handle[],
fondle[], or assault[] any child under the age of 16 years in a lewd,
lascivious, or indecent manner . . . without committing the crime of sexual
3
battery.” Id. at 671. The state argued that the elements of section
800.04(1) were similar to the elements of sections 800.04(4) and (5). Id.
The court reviewed the two statutory provisions and did “not believe that
the 1995 version of section 800.04(1) [was] similar in elements to sections
800.04(4) and (5).” Id....
CopyPublished | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 11307, 2004 WL 1685245
...Appellant was convicted of lewd and lascivious molestation. When calculating Appellant’s scoresheet, the trial court included Appellant’s conviction for violation of Title 16, 16-15-140 of the South Carolina Code. The trial court determined that the out-of-state conviction was equivalent to section 800.04, Florida Statutes, which is a level seven offense. Under this calculation, Appellant’s maximum sentence was 46.9 months’ imprisonment. Appellant filed a Florida Rule of Criminal Procedure 3.800(b) motion arguing that the South Carolina law was not equivalent to section 800.04, Florida Statutes, because the South Carolina law punished an attempt and a completion of a lewd act, and the Florida version only punished the completion of the act....
...State,
823 So.2d 809, 812 (Fla. 1st DCA 2002). The trial court is not allowed to consider facts from the trial to make a determination of whether the out-of-state crime has an equivalent in Florida. Snipes v. State,
793 So.2d 1107, 1108 (Fla. 1st DCA 2001). Because section
800.04, Florida Statutes, does not contain a provision for an attempt, it must be considered in conjunction with section
777.04(4)(a), Florida Statutes, which provides that the attempt of a lewd act upon a child will be ranked two levels below the offense attempted....
CopyPublished | Florida 5th District Court of Appeal | 13 Fla. L. Weekly 1781, 1988 Fla. App. LEXIS 3401, 1988 WL 76417
DANIEL, Judge. The defendant, David Jennings, appeals his convictions and sentences for two counts of sexual battery (counts 1 and 2) in violation of section
800.04(2), Florida Statutes (1985) and attempted sexual battery (count 3) in violation of sections
800.04(2) and
777.04, Florida Statutes (1985)....
...The defendant also argues that on the written judgment, the trial court incorrectly designated the sexual batteries as first-degree felonies when they are second degree felonies and the attempted sexual battery as a second degree felony when it is a third degree felony. The defendant is correct. See sections 800.04(2) and 777.-04(4)(c)....
CopyPublished | Supreme Court of Florida | 1977 Fla. LEXIS 3980
pursuant to Art. V, § 3(b)(3), Fla.Const. . §
800.04, Fla.Stat. (1969). Since the general revision
CopyPublished | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 1785, 1989 Fla. App. LEXIS 4273, 1989 WL 84309
...ention that direct-filed juveniles are exempted from the requirements of section 39.111. Boudreau’s convictions are affirmed. We remand for resentencing in compliance with section 39.111(7). SCHEB, A.C.J., and DANAHY and SCHOONOVER, JJ., concur. . § 800.04, Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 2007 Fla. App. LEXIS 11368, 2007 WL 2089306
...violation of section
794.011(2)(b), Florida Statutes; and with unlawfully engaging in sexual activity, i.e., lewd or lascivious battery (by vaginal penetration), with M.H., who was 12 years of age or older but less than 16 years old, in violation of section
800.04(4)(a), Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal | 2004 WL 1673406
...awful and that he is entitled to immediate release. We exercise our jurisdiction pursuant to Article V, section 4(b)(3) of the *61 Florida Constitution and grant the petition for habeas corpus. The petitioner was arrested for an alleged violation of Section 800.04(4)(a), Florida Statutes (2003), in December of 2003....
CopyPublished | Florida 2nd District Court of Appeal | 1997 Fla. App. LEXIS 8384, 1997 WL 408750
...s of handling and fondling a child under sixteen. Appellant was charged with one count of capital sexual battery, pursuant to section
794.011(2)(a), Florida Statutes (1993), and four counts of handling and fondling a child under sixteen, pursuant to section
800.04(1), Florida Statutes (1993)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...erformance by a child, in violation of
Fla. Stat. §
827.071(3). In August of 2002, he pleaded no contest to two Florida
sex offenses: one count of touching a person under 16 years of age in a lewd or
lascivious manner, in violation of Fla. Stat. §
800.04(6), and one count of lewd or
lascivious exhibition in the presence of a person less than 16 years of age, in
violation of Fla. Stat. §
800.04(7)....
CopyPublished | Florida 5th District Court of Appeal | 14 Fla. L. Weekly 1722, 1989 Fla. App. LEXIS 4091, 1989 WL 78867
presence of a child under the age of sixteen. Section 800.-04(3), Fla.Stat. (1987). The jury convicted him
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 9679
...testified that as she waited on the bus ramp with a group of friends, M.L.C. walked up behind her and slid his hand across her buttocks, in a quick second. This was the extent of the evidence undergirding counts one and four of the petition. Lewd or lascivious molestation, as provided in section 800.04(5)(a),(c)(1), Florida Statutes (2002), proscribes the offender’s intentional touch of the victim’s buttocks or the clothing covering them “in a lewd or lascivious manner.” Here, however, there is no evidence of lewd or lascivious intent in M.L.C.’s split-second contact with the girls’ buttocks....
CopyPublished | Supreme Court of Florida
...section
787.01(2) (kidnapping) or
787.02(2)
(false imprisonment), Florida Statutes, if in the course of committing the
kidnapping or false imprisonment the defendant committed a sexual battery under
chapter 794, Florida Statutes, or a lewd act under section
800.04 or
847.0135(5),
Florida Statutes, against the victim;
b....
...or (3)(a)3., Florida
Statutes, (false imprisonment of a child under 13 with a sexual battery or lewd act);
d. section
794.011, Florida Statutes, (sexual
battery), excluding section
794.011(10);
- 39 -
e. section
800.04, Florida Statutes, (lewd or
lascivious offenses); or
f....
... The victim was years of age at the time of the offense.
Age of Defendant
The defendant was years of age at the time of the offense.
Relationship to Victim
The defendant is not the victim’s parent or guardian.
Sexual Activity [Section 800.04(4), Florida Statutes]
The offense did did not involve sexual activity.
Use of Force or Coercion [Section 800.04(4), Florida Statutes]
The sexual activity described herein did did not involve the use of
force or coercion.
Use of Force or Coercion/unclothed Genitals [Section 800.04(5), Florida Statutes]
The molestation did did not involve unclothed genitals or genital
area.
The molestation did did not involve the use of force or coercion....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 8192, 1997 WL 395240
Confession of Error PER CURIAM. Robert C. Boatwright appeals the sentence imposed upon him on revocation of probation for the crime of lewd and lascivious act in violation of section 800.04, Florida Statutes (1993)....
CopyPublished | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 9615, 2009 WL 2031177
...A brief summary of the procedural history of the case is necessary to explain our decision. In July 1989, Corley committed the crimes of fondling the penises of two children under the age of sixteen. In 1990, he pled guilty to two felony violations of section 800.04 of the Florida Statutes and was placed on probation for ten years with special conditions....
CopyPublished | Florida 4th District Court of Appeal | 1999 Fla. App. LEXIS 9274, 1999 WL 492928
...URIAM. The defendant seeks review of the denial of his Rule 3.800 motion to correct illegal sentence. We reverse in part. In 1993, Carroll was charged with one count of committing a lewd assault upon a child under the age of sixteen, in violation of section 800.04, Florida Statutes (1993)....
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 11592, 2006 WL 1896607
...ed. The lewd and lascivious battery statute defines sexual activity similarly to sexual battery. It then refines the crime when the defendant “engages in sexual activity with a person 12 years of age or older but less than 16 years of age .... ” § 800.04(l)(a), (4), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 2813998, 2012 Fla. App. LEXIS 11101
...tion treatment of individuals convicted of certain sexual offenses, and choice of address is not a fundamental right. Calderon pled guilty in March 2010 to one count of lewd or lascivious exhibition on a child under sixteen years of age, pursuant to section 800.04(7), Florida Statutes (2010), and one count of burglary of an occupied residence....
...n the home where his wife presently resides. Section 21-281(a) of the Miami-Dade County Sexual Offender and Sexual Predator Ordinance provides: It is unlawful for any person who has been convicted of a violation of Sections
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) or
847.0145 (selling or buying of minors for portrayal in sexual explicit conduct), Florida Statutes, or a similar law or another jurisd...
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 7450, 1992 WL 157488
...We reverse with directions to the trial court to consider whether the trial court, in its discretion, chooses to seal Sutherland’s nonjudicial records. 1 In 1987 the state filed an information charging Sutherland with handling and fondling a female child under the age of sixteen years pursuant to section 800.04(1), Florida Statutes (1985)....
...In 1991 Sutherland filed a petition to seal his criminal history records. The state objected at the hearing to the sealing on the ground that section 943.058(9), Florida Statutes (1991), prohibits a sealing of a record of a person charged with a violation of section 800.04....
...There is no dispute that, but for section 943.058(9), Florida Statutes (1991), Sutherland meets the criteria set forth in section 943.058(2) to be considered for a sealing or expunction. 2 Section 943.058(9), however, provides: “A criminal history record relating to a violation of ... s. 800.04, ......
...ccessible to any person not having a legal right of access to the record or the information contained and preserved therein. §
943.045(13), (14), Fla.Stat. (1991). Because subsection (9) only prohibits the expungement of a record for a violation of section
800.04, we conclude that the trial court, within its discretion, 3 may seal the nonjudicial records in this case....
CopyPublished | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 107, 2002 WL 21029
STRINGER, Judge. Ernest King challenges his sentences in two cases: 98-14136 and 94-12049. Both cases arose from King’s conviction for lewd and lascivious conduct, a second-degree felony. See § 800.04(6)(b), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 40, 2012 WL 28803
CLARK, J. Gregory Allen Johnson appeals his conviction, after jury verdict, of Lewd or Lascivious Conduct upon, and Lewd or Lascivious Exhibition in the presence of, a six year old girl. § 800.04(6) & (7), Fla....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 28, 1995 WL 1525
BARFIELD, Judge. Willie Green, Jr. appeals his convictions, after jury trial, of lewd, lascivious or indecent assault upon a child, in violation of section
800.04, Florida Statutes, and sexual battery by slight force, in violation of
794.011(5), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
...It argued that the facts to which Nolan
entered a plea implicitly established the basis for several criminal
offenses, including solicitation of a minor for sexual conduct in
violation of section
847.0135(3), Florida Statutes; lewd or
lascivious conduct in violation of section
800.04(6), Florida
Statutes; and attempted lewd or lascivious battery in violation of
section
800.04(4), Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal | 1968 Fla. App. LEXIS 6066
contention is untenable and we affirm. F.S. Section
800.04, F.S.A. provides. “Any person who shall handle
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 1182, 2015 WL 376479
...Those lesser offenses not instructed on at trial cannot be the basis for a retrial. Gibson,
682 So.2d at 546 . Here, no lesser offenses were submitted to the jury at trial. Hence, Mr. Cobb is entitled to discharge. REVERSED and REMANDED. BERGER and LAMBERT, JJ., concur. . An earlier version of section
800.04(1), Florida Statutes (1998), provided that "[a] person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner ......
CopyPublished | Florida 3rd District Court of Appeal | 1997 Fla. App. LEXIS 11, 1997 WL 1824
...im’s parents’ or guardian’s counseling costs. In all other respects, the sentence is affirmed. REVERSED IN PART; AFFIRMED IN PART; REMANDED. PETERSON, C.J., and SHARP, W., J., concur. . §§
777.04,
794.011(2),
794.011(1), Fla. Stat. (1995). . §
800.04(3), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 1175, 2016 WL 358866
...e
charged Rodriguez with traveling to seduce/solicit/entice a child to commit a sex act, §
847.0135(4), Fla. Stat. (2012), use of a computer to seduce/solicit a child to commit a
sex act, §
847.0135(3), and attempted lewd or lascivious battery, §
800.04(4)(a), Fla.
Stat....
CopyPublished | Florida 3rd District Court of Appeal
...Greason, Asst. Atty. Gen., and Clifford M. Miller, Legal Intern, for appellee. Before BARKDULL, HUBBART and NESBITT, JJ. NESBITT, Judge. Defendant appeals his conviction for: (1) lewd and lascivious assault upon a child under the age of fourteen as denounced by Section
800.04, Florida Statutes (1977); and (2) child abuse as condemned by Section
827.04, Florida Statutes (1977)....
CopyPublished | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 575, 2009 WL 187583
...t Palm Beach, for appellant. Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Dirk Schuster was charged with two counts of lewd and lascivious molestation under section 800.04(5)(a), Florida Statutes (2007), and four counts of lewd and lascivious battery against a minor, contrary to section 800.04(4)(a)....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 712, 2000 WL 85307
ALTENBERND, Acting Chief Judge. Ernest J. King appeals a 30-year habitual felony offender sentence imposed after he was found guilty of a lewd and lascivious act in the presence of a child, a violation of section 800.04(4), Florida Statutes (1997)....
CopyPublished | District Court of Appeal of Florida
"sanction" for his conviction under section
800.04 consists of fifteen years' prison and
CopyPublished | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 563
...In January 1984, Ortega was convicted of sexual battery. See §
794.011, Fla. Stat. (1983). He was imprisoned and later released on probation. During his probation, he was charged and convicted of two separate offenses of lewd acts upon a child occurring between July 1, 1990, and February 1, 1991. See §
800.04, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2005 WL 155468
...In January 1984, Ortega was convicted of sexual battery. See §
794.011, Fla. Stat. (1983). He was imprisoned and later released on probation. During his probation, he was charged and convicted of two separate offenses of lewd acts upon a child occurring between July 1, 1990, and February 1, 1991. See §
800.04, Fla....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 1222, 1993 WL 12405
...nse of sexual activity with a child by a person in familial or custodial authority in violation of section 794.041, Florida Statutes, a first degree felony, and (2) having committed a lewd or lascivious act in the presence of a child in violation of section 800.04(3), Florida Statutes, a second degree felony....
CopyPublished | Florida 3rd District Court of Appeal | 2017 WL 362550, 2017 Fla. App. LEXIS 719
...torney
General, for appellee.
Before LAGOA, SALTER and EMAS, JJ.
EMAS, J.
Michael Woodruff appeals from a conviction and sentence for one count of
lewd or lascivious molestation of a victim under twelve years of age, in violation of
section 800.04(5), Florida Statutes (2009).1 Woodruff raises four issues on appeal:
1) The trial court erred in excluding evidence that the victim was the product of a
sexual battery; 2) The trial court erred in excluding evidence that the victim h...
...under
twelve years of age. The jury found Woodruff not guilty of the sexual battery charge
and two of the three counts of lewd or lascivious molestation. On the one count for
which Woodruff was found guilty (Count Four, a life felony as provided by section
800.04(5)(b), Florida Statutes (2009)), the trial court sentenced Woodruff to twenty-
five years in prison followed by probation (with mandatory electronic monitoring)
for the rest of his natural life....
CopyPublished | District Court of Appeal of Florida | 1967 Fla. App. LEXIS 5280
...ic) though the sentence * * * even though the act charged in Count Two is the same act in Count One under a different name. And as long as the sentences are concurrent the question is moot, since it constitutes in effect really only one sentence.” Section 800.04, Florida Statutes, F.S.A., the basis for the criminality charged in both counts, states: “Lewd, lascivious or indecent assault or act upon or in presence of child....
...thin its provisions and Section 801.03 of the law empowers a judge, within his discretion, to sentence a defendant convicted of any of the acts included in Section 801.02 (as well as lewd and lascivious acts) to a maximum of twenty-five years. Thus, Section
800.04, as well as the Child Molester Law, prohibits the offenses defined in Section
800.04 yet each statute provides a different penalty therefor. Ross v. State, Fla.App.1959,
112 So.2d 69 , dealt with the problem of different penalties and held that the penalty provision of Section 801.02 supersedes the conflicting provisions for penalty in Section
800.04....
...Here the trial court has already determined that the two counts, in effect, only charged one criminal act and therefore, by our discussion, only one sentence is valid. Since only one act is charged and the penalty provisions of the Child Molester Law supersede the penalty in Section 800.04, the six months to ten year sentence has no validity while the six months to fifteen year sentence imposed upon the first count stands uncorrected....
CopyPublished | Florida 3rd District Court of Appeal
...Tinkler Mendez, Judge.
Rier Jordan, P.A., and Jonathan E. Jordan, for appellant.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney
General, for appellee.
Before EMAS, HENDON and LOBREE, JJ.
PER CURIAM.
Affirmed. Compare § 800.04(4)(a)(1), Fla. Stat. (2018) (“A person
commits lewd or lascivious battery by. . . [e]ngaging in sexual activity with a
person 12 years of age or older but less than 16 years of age”) and §
800.04(1)(d), Fla. Stat. (2018) (defining “sexual activity” 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 other object”); with § 800.04(5)(a),
Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...tent that she engage in criminal sexual activity under Florida and
North Carolina law. See 18 U.S.C. § 2423(a). Both Florida law and
North Carolina law criminalize, among other things, oral sex and
sexual touching between adults and young children. See generally
FLA. STAT. § 800.04 (2012); N.C....
CopyPublished | Florida 5th District Court of Appeal | 1997 Fla. App. LEXIS 239, 1997 WL 24237
...conform with the trial court’s oral prohibition against contact with children under the age of 16. REVERSED and REMANDED for resen-tencing in conformity with this opinion. PETERSON, C.J., and W. SHARP, J., concur. . §
831.02, Fla.Stat. (1993). . §
800.04(3), Fla.Stat....
CopyPublished | Supreme Court of Florida
...The victim was years of age at the time of the offense.
Age of Defendant
The defendant was years of age at the time of the offense.
Relationship to Victim
The defendant is not the victim’s parent or guardian.
Sexual Activity [F.S.Section 800.04(4), Florida Statutes]
The offense did did not involve sexual activity.
Use of Force or Coercion [F.S.Section 800.04(4), Florida Statutes]
The sexual activity described herein did did not involve the use of
force or coercion.
Use of Force or Coercion/unclothed Genitals [F.S.Section 800.04(5), Florida Statutes]
The molestation did did not involve unclothed genitals or genital area.
- 31 -
The molestation did did n...
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 648, 2015 WL 249322
...ly sufficient record to warrant pretrial detention. Accordingly, we deny the petition. Arrest and Release Initially, the petitioner was arrested on August 8, 2014, for lewd and lascivious molestation of a victim twelve years of age or younger, under section 800.04(5)(b), Florida Statutes (2014)....
CopyPublished | District Court of Appeal of Florida | 1967 Fla. App. LEXIS 5233
...for a new trial. We have carefully considered the remaining point made by appellant on this appeal, but find it to be without substantial merit. The judgment appealed is accordingly affirmed. RAWLS, C. J., and CARROLL, DONALD, K., J., concur. . F.S. § 800.04, F.S.A....
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 514, 2012 WL 126204
...He carried her off and took her in his car to an abandoned road where he vaginally and anally penetrated her. In 1999, a jury convicted appellant of aggravated kidnapping in violation of section
787.01(3)(a), Florida Statutes (1997) 1 and lewd, lascivious, or indecent act upon a child under sixteen in violation of section
800.04, Florida Statutes (1997)....
...This court has recognized that a conviction for a truly *62 nonexistent crime is one circumstance that may warrant relaxing the procedural bars and merit correction at any time. Moore v. State,
924 So.2d 840 (Fla. 4th DCA 2006). Erlsten was charged by amended information and convicted in Count II under section
800.04, Florida Statutes (1997), which provided in relevant part: A person who: (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner; (2) Commits actual or simulated sexual intercours...
...791.011(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.
775.082, s.
775.083, or s.
775.084. §
800.04, Fla....
...be raised at any time. He contends that he is entitled to a new trial on Count I because the kidnapping charge may have been aggravated based on this alleged non-existent crime. In dozens,
649 So.2d at 323 , the court concluded that the charge under section
800.04(3) was “fatally flawed” because “[u]nder 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.” The information in dozens charged that the de...
...In so holding, the court employed overbroad language: “The complete failure of an information to charge a crime is a defect that can be raised at any time.”
649 So.2d at 324 . This language is dicta. Jozens and Beck do not stand for the proposition that a challenge to the manner in which a section
800.04 offense was charged can be raised “at any time,” including in an untimely and successive postconviction motion....
...The legislature clearly intended the lewd, lascivious, and indecent act statute to prohibit and criminalize sexual intercourse and acts defined as sexual battery when committed upon those less than sixteen years of age. Ch. 84-86, § 5, at 264-65, Laws of Fla.; State v. Hightower,
509 So.2d 1078 (Fla.1987). The charge under section
800.04(3), Florida Statutes (1997), which alleged that defendant committed “an act defined as sexual battery,” was not “fatally flawed” and did not fail to charge a crime....
CopyPublished | Supreme Court of Florida
...§
784.048(7), Fla. Stat.
To prove the crime of Aggravated Stalking, the State must prove the
following three elements beyond a reasonable doubt:
1. (Defendant) was sentenced for [sexual battery] [violating Fla. Stat.
800.04] [violating Fla....
CopyPublished | Supreme Court of Florida
...[The term also includes any person who is a
parole examiner with the Parole CommissionFlorida Commission on Offender
Review.].
The words “lewd” and “lascivious” mean the same thing: a wicked,
lustful, unchaste, licentious, or sensual intent on the part of the person doing
an act.
§ 800.04(1)(a), Fla....
...-6-
§
847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§
800.04(1)(d), Fla....
...committed or attempted or a person who has reported these acts to a law
enforcement officer.
See State v. Werner,
609 So. 2d 585 (Fla. 1992).
“In the presence of” means that a victim saw, heard, or otherwise
sensed that the act was taking place.
§
800.04(2), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 419, 2008 WL 142095
...to establish relevancy by demonstrating the similarity between the two acts. It also misapplies section
90.404(2)(b)(2)’s requirement that the admission of other crimes evidence must be an act of child molestation as defined by section
794.011 or section
800.04, Florida Statutes (2001); possession of child pornography is not defined as one of these prescribed acts....
CopyPublished | Florida 4th District Court of Appeal
...rendered on May 17, 2021, wherein the trial court denied Appellant’s post-
sentencing rule 3.170(l) motion to withdraw his plea of guilty to four
counts of lewd and lascivious molestation by a person over eighteen on a
person less than twelve years old pursuant to section 800.04(5)(b), Florida
Statutes (2020)....
CopyPublished | Supreme Court of Florida | 20 Fla. L. Weekly Supp. 33, 1995 Fla. LEXIS 14, 1995 WL 8968
specifically upheld the constitutionality of section
800.04, applies equally to section 794.041. GRIMES
CopyPublished | Florida 5th District Court of Appeal | 1990 Fla. App. LEXIS 164, 1990 WL 2067
...Finding the reasons stated by the trial court in justification of the departure are legally sufficient, we affirm. Defendant was convicted, upon his plea of nolo contendere, of multiple counts of lewd, lascivious or indecent assault upon a child under the age of sixteen, in violation of section 800.04, Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal
...(2024).
In 2001, at the age of 26, Michael Crist, attempted to engage
in unlawful conduct with a minor under the age of 12. In 2002, he
pled no contest to violations of section
794.011(3), Florida
Statutes, (attempted sexual battery on a child under the age of
12), and section
800.04(5)(a) & (b), Florida Statutes, (lewd and
lascivious molestation), resulting in eight years in prison and
seventeen years of supervision....
CopyPublished | Court of Appeals for the Eleventh Circuit
...4 Opinion of the Court 21-12540
I
In 2008, Louis Clements pled guilty to a charge of lewd or
lascivious conduct in violation of Fla. Stat. § 800.04(6)(b) and was
sentenced to five years of sexual offender probation....
...ement as a sexual offender
pursuant to [Fla. Stat.] §
943.0435.” See also Fla. Stat.
§
943.0435(1)(h)1.a.(I) (defining a sex offender as any person con-
victed of various sexual offenses, including a violation of §
800.04).
Nine years later, in 2017, Mr....
CopyPublished | Florida 2nd District Court of Appeal
...en
regularly congregate.
X.W. was sheltered, adjudicated dependent as to both C.W. and S.B., and
placed with his maternal grandmother—S.B.'s mother. By everyone's account, X.W.
1Lewd or lascivious battery under section
800.04(4)(a), Florida Statutes
(2013), criminalizes "sexual activity" with a minor, the definition of which is identical to
the definition of the term "sexual battery" under section
794.011(h), Florida Statutes
(2013). See §
800.04(1)(a); see also Guardian Ad Litem Program v....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 440050, 2013 Fla. App. LEXIS 1822
...Accordingly, we affirm the circuit court’s order in part and reverse it in part. I. THE FACTUAL AND PROCEDURAL BACKGROUND On January 17, 2008, the State filed an information charging the defendant, Da-fayon Charles, with two counts of lewd or lascivious battery, a violation of section 800.04(4)(a), Florida Statutes (2007), and a second-degree felony....
...On February 5, 2010, the State filed an amended information against the defen *13 dant. The charges against the defendant in counts one and two remained unchanged. The new information added a third count charging the defendant with lewd or lascivious molestation, a violation of section 800.04(5) (c) (2), and a second-degree felony....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 443986, 2014 Fla. App. LEXIS 1372
BENTON, J. Gregory Andrews, who the state alleged was born on January 11, 1963, appeals his conviction for solicitation of a child under the age of sixteen (J.M.) to commit a lewd or lascivious act in violation of section 800.04(6)(a) and (b), Florida Statutes (2012), arguing that the evidence was insufficient to prove the crime....
...State,
590 So.2d 404, 409 (Fla.1991) (“[T]he law is now well settled that simple non-obscene nudity in photographs or films is a protected form of expression under the first amendment.”) (footnote omitted). But the precise photograph Mr. Andrews envisioned is beside the point under section
800.04....
...2d DCA 1984) (holding the act of urinating in public does not by itself constitute a lewd or lascivious act). We reject appellant’s contention 2 that the state had to prove that the nude photo he asked for would be pornographic, in order to prove that his asking J.M. to disrobe for him in the bathroom was unlawful under section 800.04(6)(a) & (b), Florida Statutes (2012)....
CopyPublished | Florida 5th District Court of Appeal | 13 Fla. L. Weekly 323, 1988 Fla. App. LEXIS 360, 1988 WL 6592
PER CURIAM. Appellant’s convictions of five counts of lewd and lascivious assault under section 800.04(1), Florida Statutes, are affirmed....
CopyPublished | Supreme Court of Florida
...to rape. The case is controlled by Rye v. State,
153 Fla. 559 ,
15 So.2d 255 . It follows that the judgment must be, and it is hereby, reversed for further proceedings not inconsistent with law, and without prejudice to prosecution for violation of Section
800.04, Florida Statutes, 1953, F.S.A....
CopyPublished | Florida 2nd District Court of Appeal | 1987 Fla. App. LEXIS 7011, 12 Fla. L. Weekly 650
...) Judge. Appellant (state) appeals from the sentence imposed upon appellee. Following revocation of probation, appel-lee pled nolo contendere and was adjudicated guilty of committing a lewd and lascivious act, a second degree felony, in violation of section
800.04, Florida Statutes (1985). Under the guidelines scoresheet, appellee had 590 points. The sentencing guidelines recommended sentence was life imprisonment. The statutory maximum for that offense is fifteen years imprisonment. §§
800.04 and
775.082(3)(c), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1978 Fla. App. LEXIS 15480
child under the age of 14 years in violation of F.S.
800.04 as a result of which he was committed for treatment
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 645533, 2013 Fla. App. LEXIS 2955
...rity to the child, in violation of section
794.011(8)(b), Florida Statutes; one count of tampering with a witness in violation of sections
914.22(1) and (2)(d), Florida Statutes; one count of lewd or lascivious molestation of a child in violation of section
800.04(5)(c)(2)., Florida Statutes; and one count of child abuse in violation of section
827.03(1), Florida Statutes....
CopyPublished | District Court, S.D. Florida | 2014 WL 667408, 2014 U.S. Dist. LEXIS 24027
...d that felony. FLA. STAT. §
901.15(3). The relevant felony in this instance prohibits intentional masturbation or the exposing of genitals in a lewd and lascivious manner in the presence of a victim who is less than sixteen years of age. FLA. STAT. §
800.04(7)....
CopyPublished | Florida 3rd District Court of Appeal
...appeals summary denial of his pro se rule 3.850
motion for postconviction relief. We affirm.
In 2009, Manetta was convicted of one count of lewd and lascivious
molestation of a child under the age of twelve and two counts of lewd and
lascivious molestation of a child between twelve and sixteen years of age
under section 800.04, Florida Statutes (2021)....
CopyPublished | Florida 2nd District Court of Appeal
...Historically, the crime of lewd or lascivious exhibition has required a
contemporaneity of time and place to support a conviction. See, e.g., State v. Werner,
609 So. 2d 585, 586 (Fla. 1992) (explaining that to prove lewd or lascivious exhibition
under section
800.04(3), Florida Statutes (1987), the State must offer evidence that the
defendant committed a "lewd or lascivious act in the presence of any child" and defining
presence as "encompass[ing] sensory awareness as well as physical proximity"). And
-2-
Florida courts have previously reversed convictions for lewd or lascivious exhibition
under section
800.04 when they were based on showing a photograph to the victim.
See Adams v. Culver,
111 So. 2d 665, 666 (Fla. 1959) (holding that showing a child a
"lewd and pornographic picture" did not support a conviction for lewd or lascivious
exhibition under section
800.04 and explaining that it would support a charge under
section 847.01, Florida Statutes (1957), which prohibited showing a lewd photograph to
a minor); Brady v. State,
553 So. 2d 316, 317 (Fla. 1st DCA 1989) (concluding that
throwing nude photographs from an automobile did not constitute lewd or lascivious
exhibition under section
800.04 because the defendant "did not commit a lewd act in the
presence of a child").
The legislature removed the requirement that the victim and the offender
share the same location in 2000 when it created the offense of usi...
...r a
computer on-line service." Ch. 00-246, §1, at 2399, Laws of Fla. Although not
controlling, a review of the legislative history behind section
847.0135(5)(a) is helpful to
our determination. The legislature originally included this offense in section
800.04(7)(b); when it was enacted, the language was materially identical to the current
language in section
847.0135(5)(a)....
...struction
based on section
847.0138(2). And the State has not identified, nor could we find, a
-4-
Florida case upholding a conviction for lewd or lascivious exhibition under section
847.0135(5) or section
800.04 based on the transmission of still images....
CopyPublished | Supreme Court of Florida
...The victim was years of age at the time of the offense.
Age of Defendant
The defendant was years of age at the time of the offense.
Relationship to Victim
The defendant is not the victim’s parent or guardian.
Sexual Activity [F.S.Section 800.04(4), Florida Statutes]
The offense did did not involve sexual activity.
Use of Force or Coercion [F.S.Section 800.04(4), Florida Statutes]
The sexual activity described herein did did not involve the use of
force or coercion.
Use of Force or Coercion/unclothed Genitals [F.S.Section 800.04(5), Florida Statutes]
The molestation did did not involve unclothed genitals or genital area.
- 31 -
The molestation did did n...
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 6126
PEARSON, Judge. The appellant was found guilty after a non-jury trial of lewd, lascivious or indecent assault upon a female minor under the age of 14 years in violation of § 800.04, Fla.Stat., F.S.A....
..., lustful, unchaste, licentious or sensual design on the part of the perpetrator.”
27 So.2d at 294 . We think the evidence viewed as a whole is insufficient to prove beyond a reasonable doubt that the appellant was guilty of the crime described in §
800.04 Fla.Stat., F.S.A., as defined in Boles v....
CopyPublished | Florida 4th District Court of Appeal
...4th DCA 2011)).
The Lewd and Lascivious Molestation Sentences
Appellant argues that his concurrent sentences to life with a twenty-
five year mandatory minimum on the molestation counts are illegal.
Appellant correctly points out that, while a violation of section
800.04(5)(b)
Florida Statutes, is a life felony, the offense is subject to a specific
sentencing statute, section
775.082(3)(a)4.a., Florida Statutes (2016).
That sentencing statute states:
Except as provided in sub-subparagraph b.,[ 1] for a life felony
committed on or after September 1, 2005, which is a violation
of s.
800.04(5)(b), by:
(I) A term of imprisonment for life; or
(II) A split sentence that is a term of at least 25 years’
imprisonment and not exceeding life imprisonment, followed
by probation or community control for the remainder of the
person’s natural life, as provided in s.
948.012(4).
§
775.082(3)(a)4.a., Fla. Stat. (2016). Citing Hernandez v. State,
162 So.
3d 130, (Fla. 4th DCA 2014), Appellant correctly argues that the two
possible sentences for a life felony violation of section
800.04(5)(b) are:
“either a life sentence or a split sentence” involving at least twenty-five
1 Sub-subparagraph b. is inapplicable to Appellant because it pertains to a
second or subsequent violation of section
800.04(5)(b), see §
775.082(3)(a)4.b.,
Fla....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 1574, 1995 WL 63060
...In allowing the state to admit the videotaped interview, the judge ruled that the tape was relevant to show how Petersen gained the trust of the boys by allowing them to have access to his home and his belongings. Trust was not a material issue. Petersen was charged with violating section 800.04(2) 5 , specifically that he “actually and knowingly exposed his genitals ......
...n by more than one person. State v. Hernandez,
596 So.2d 671 (Fla.1992); Alfonso v. State,
633 So.2d 126 (Fla. 3d DCA 1994). REVERSED and REMANDED. DAUKSCH, J., concurs specially, with opinion. GRIFFIN, J., concurs in result only, without opinion. . §
800.04(2), Fla.Stat....
...pe was the most egregious example of improper hearsay. . All the boys were under the age of 11 at the time the state filed the information. . Williams v. State,
110 So.2d 654 (Fla.), cert. denied,
361 U.S. 847 ,
80 S.Ct. 102 ,
4 L.Ed.2d 86 (1959). . Section
800.04 reads in pertinent part: Any person who: [[Image here]] (2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of the genitals, or...
...hat 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; [[Image here]] without committing the crime of sexual battery, commits a felony of the second degree ... § 800.04(2), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 1357, 2000 WL 172470
...Roger Pickles, Assistant General Counsel, Department of Corrections, Tallahassee, for petitioner. Jack Edward Orsley of Law Offices of Orsley & Cripps, P.A., West Palm Beach, for respondent. FARMER, J. Respondent was convicted of several violations of section 800.04 and sentenced to community control and subsequent probation....
...Section
948.03(6) unambiguously provides: "The enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper. However, the sentencing court may only impose a condition of supervision allowing an offender convicted of s.
794.011, s.
800.04, s....
CopyPublished | Supreme Court of Florida | 20 Fla. L. Weekly Supp. 71, 1995 Fla. LEXIS 225, 1995 WL 60808
...racy or drug trafficking eases.” Id. , As in the crime of sexual battery, premeditation or calculation is not an inherent component of the crimes at issue here, lewd or lascivious conduct in the presence of a child and a lewd act upon a child. See § 800.04, Fla.Stat....
...n in the negative. We approve in part and quash in part the decision of the district court and remand this case for proceedings consistent with this opinion. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN, WELLS and ANSTEAD, JJ., concur. . Section 800.04, Florida Statutes (1991), 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 maimer; (2) Commits actual or simulated sexual intercourse, deviat...
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 557178, 2013 Fla. App. LEXIS 2408
...Register argues that his judgment and sentences violate the constitutional guarantee against double jeopardy. We disagree and affirm both convictions. On April 8, 2004, the State charged Register, through information, with two counts of lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes....
...lascivious manner and forced or enticed the victim to touch his genitals in a lewd or lascivious manner. Although these acts occurred diming a single criminal episode, they are distinct in character and type and require different elements of proof. Section 800.04(5), Florida Statutes, proscribes each of these distinct acts....
CopyPublished | Florida 3rd District Court of Appeal
...his motion to correct an illegal sentence, which the trial court treated as a petition
for removal from the sex offender registry. We affirm.
The defendant was convicted of lewd and lascivious battery on a child
between the age of twelve and sixteen years, in violation of section
800.04(4),
Florida Statutes (2000). Section
943.0435, Florida Statutes (2000), requires that
all offenders convicted of committing certain offenses, including lewd and
lascivious battery on a child between the age of twelve and sixteen years under
section
800.04(4), be registered as sexual offenders....
...by determining that the defendant was not an appropriate candidate for relief under
section
943.04354.
In 2000, the defendant was convicted of lewd and lascivious battery on a
child between twelve and sixteen years of age, in violation of section
800.04(4),
which required that the defendant be registered as a sexual offender....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 1034, 1991 WL 16309
...f kidnapping upon a child under the age of 13 and who, in the course of committing the offense, commits one or more of the following: * * * * * * 3. A lewd, lascivious, or indecent assault or act upon or in the presence of the child, in violation of s. 800.04. ****** is guilty of a life felony.... Section 800.04(3), Florida Statutes, provides: (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....
...is commission of a sexual battery on her, and that act was committed in the presence of the younger sister. Even the rape of the older sister in the adjoining room occurred within the sensory presence of the child and was alone sufficient to violate section
800.04(3), Florida Statutes, and to constitute the predicate crime for a violation of section
787.01(3)(a)3., Florida Statutes....
CopyPublished | Florida 1st District Court of Appeal
was charged with child molesting pursuant to Section
800.04, Florida Statutes, F.S.A. A plea of nolo contendere
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 1766, 2016 WL 519614
...over eighteen years of age upon a child less than twelve years of age, a violation of
sections
777.04(1) and
794.011(2)(a), Florida Statutes (1999), a first-degree felony;
Count 2, lewd or lascivious exhibition upon a person less than sixteen years of age, a
violation of section
800.04(7), Florida Statutes (1999), a second-degree felony; and
Count 3, lewd or lascivious molestation by a person over eighteen years of age on a
child less than twelve years of age, a violation of section
800.04(5)(a)-(b), a first-degree
felony.1 In accordance with the terms of the plea negotiations, the trial court sentenced
Mr....
CopyPublished | District Court, N.D. Florida | 2006 U.S. Dist. LEXIS 65293, 2006 WL 2528765
...the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution. [11] In Florida, a person who "[e]ngages in sexual activity with a person 12 years of age or older but less than 16 years of age" commits a felony of the second degree. § 800.04(4)(a)....
CopyPublished | Supreme Court of Florida
...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....
...lesser offense.”
Khianthalat,
974 So. 2d at 361 (citations omitted) (quoting Jones v. State,
666 So.
2d 960, 964 (Fla. 3d DCA 1996); Williams,
957 So. 2d at 599).
Knighton was charged with and convicted of lewd or lascivious battery
under section
800.04(4), Florida Statutes (2013)....
...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....
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 1156, 31 Fla. L. Weekly Fed. D 356
...ay of April ... being eighteen (18) years of age or older, did solicit ... a person under sixteen (16) years of age, to commit a lewd or lascivious act, to wit: to allow Willie Randall to place his tongue on the genital area of [A.J.], contrary to F.S. 800.04(6)(a) and F.S. 800.04(6)(b)....
...that he wanted to lick her vagina was not sufficient to support the conviction of solicitation to commit lewd or lascivious conduct. We agree. Our analysis begins with an examination of the two statutes describing the conduct for which Randall was convicted. The two statutes involved are section
800.04(6), Florida Statutes (2003), and section
777.04(2), Florida Statutes (2003). The relevant part of section
800.04(6) states that lewd or lascivious conduct includes a person who “[s]olieits a person under 16 years of age to commit a lewd or lascivious act.” Section
777.04(2) describes the crime of solicitation as: A person who solicits another...
CopyPublished | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 1083, 2002 WL 125624
....DCF uses South Bay to house pretrial detainees who have declined to participate in voluntary counseling/treatment programs offered by DCF. No counseling or treatment is provided at that facility. State, Dept. of Children & Families v. Jackson,
790 So.2d 535 (Fla. 2d DCA 2001). . §
800.04, Fla....
CopyPublished | Supreme Court of Florida | 15 Fla. L. Weekly Supp. 46, 1990 Fla. LEXIS 202, 1990 WL 8227
...This time, Williams agreed to give her the ride. He drove his BMW automobile approximately one block from his office to the apartment. As they were about to leave the apartment, Williams allegedly touched or fondled the victim's breast in violation of section 800.04 of the Florida Statutes (1985)....
CopyPublished | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 290, 1985 Fla. App. LEXIS 12081
...He was sentenced to concurrent thirty-year terms of imprisonment, and the court retained jurisdiction for a period of ten years on each charge. On appeal defendant’s only challenge is to his sentences. The offense of handling and fondling a child under the age of fourteen is a second-degree felony, section 800.04, Florida Statutes (1983), and is punishable by a maximum sentence of fifteen years imprisonment....
CopyPublished | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 2781, 1987 Fla. App. LEXIS 11468, 1987 WL 2280
PER CURIAM. Convicted of a violation of section 800.-04(1), Florida Statutes (1985), appellant challenges
CopyPublished | District Court of Appeal of Florida
“lewd” for purposes of section
827.071 (and section
800.04, Florida Statutes (2019)), if the conduct in
CopyPublished | Florida 2nd District Court of Appeal
...Without commenting upon the weight afforded to the victim's
testimony, a determination for the jury, we observe that the victim's testimony, alone,
-4-
could likely be sufficient to establish the elements of the charged offense. See §
800.04(5)(a), (b), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...Without commenting upon the weight afforded to the victim's
testimony, a determination for the jury, we observe that the victim's testimony, alone,
-4-
could likely be sufficient to establish the elements of the charged offense. See §
800.04(5)(a), (b), Fla....
CopyPublished | District Court of Appeal of Florida
...or and we express no opinion on this issue. 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. . §
800.04(1), Fla.Stat. (1985). . §
794.011(2), Fla.Stat. (1985). . § 794.041(2)(b), Fla.Stat. (1985). . §
800.04(1), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 20523, 2009 WL 5151752
...Christopher Simmons appeals an order denying his petition to remove the requirement that he register as a sexual offender which was filed pursuant to section
943.04354, Florida Statutes (2008). The trial court erroneously denied the petition based upon a finding that, because Simmons had been adjudicated guilty of violating section
800.04, Florida Statutes (2000), he was ineligible for relief. See §
943.04354(1)(a) (permitting a defendant to seek relief if he was convicted of violating section
800.04 or if adjudication of guilt is withheld). We reverse and remand for further proceedings. Section
943.0435, Florida Statutes (2000), provides that a defendant convicted of violating section
800.04, as well as other enumerated offenses, is automatically designated a sexual offender and required to comply with the registration requirements of the statute....
...ffender registry if he satisfies the criteria of that statute. Miller v. State,
17 So.3d 778, 780 (Fla. 5th DCA 2009). Here, the trial court erroneously concluded Simmons was not entitled to relief because he had been adjudicated guilty of violating section
800.04 and did not consider the other requirements of the statute....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 20510, 2009 WL 5151525
...lant was convicted of sex crimes in two separate cases, however, he is ineligible for exemption. We affirm the trial court's order. Appellant was charged with lewd and lascivious battery of a victim over 12 but under 16 years of age, in violation of section 800.04(4), Florida Statutes....
...Section
943.04354 provides: (1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person: (a) Was or will be convicted or adjudicated delinquent of a violation of s.
794.011, s.
800.04, or s.
847.0135(5) or the person committed a violation of s.
794.011, s.
800.04, or s.
847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s.
794.011, s.
800.04, or s....
...statute should be given its plain and obvious meaning. Id. Section
943.04354 includes a requirement that "the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s.
794.011, s.
800.04, or s....
CopyPublished | Florida 1st District Court of Appeal | 2002 Fla. App. LEXIS 19371, 2002 WL 31889453
PER CURIAM. Appellant seeks review of his conviction for a lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (1997)....
...pears to contravene the legislative intent as construed by State v. Hightower,
509 So.2d 1078 (Fla.1987). Nevertheless, because the holding in Jozens remains intact, we are constrained to follow that case. The Legislature has now extensively amended section
800.04, and it does not appear that the result this court reached in Jozens could be repeated....
CopyPublished | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 153, 1986 Fla. App. LEXIS 11176
...years imprisonment. The trial judge departed from the guidelines, stating as his reasons the tender years of the victim and the fact that the state attorney did not charge the highest crime possible. Rozar was convicted of three counts of violating section 800.04, Florida Statutes (1985), which prohibits a lewd or lascivious assault on any child under the age of sixteen years....
CopyPublished | Florida 6th District Court of Appeal
...Robert Wayne Lincoln appeals his judgment and sentence for lewd
molestation. 1 While Lincoln challenges several of the trial court’s rulings, we find
merit only in the claim that his judgment and sentence for the crime of lewd
molestation under section 800.04(5)(b), Florida Statutes (2021), against a victim less
1
This case was transferred from the Second District Court of Appeal to this
Court on January 1, 2023.
than twelve years of age, was improper. Lincoln was sentenced to life in prison
under section 800.04(5)(b), which required a jury finding that the victim was less
than twelve years of age....
...There was no such finding in this case, however, and the
evidence showed the victim turned twelve before the date of the offense. In fact, the
jury was only instructed on lewd molestation on a victim twelve or older, but less
than sixteen years of age, which is a second-degree felony under section
800.04(5)(c)2. The State concedes error on this point.
We now reverse and remand for the trial court to vacate the judgment for lewd
molestation as a first-degree felony under section 800.04(5)(b). Since the jury was
properly instructed under section 800.04(c)2 and found Lincoln guilty of that
offense, on remand, the trial court should enter judgment for that offense, obtain a
corrected scoresheet and pre-sentence investigation, and resentence Lincoln on the
second-degree felony of lew...
...bottoms of her two-piece bathing suit while swimming in the pool at his home. The
amended information charged that Lincoln committed the offense against “a child
2
under 12 years of age, contrary to Florida Statutes 800.04” and included the
notations “(LIFE FEL) (LEVEL 9).”2
The facts regarding the victim’s age at the time of the offense are not in
dispute....
...present a
compelling demand for its application.” Smith v. State,
521 So. 2d 106, 108 (Fla.
1988) (citing Ray v. State,
403 So. 2d 956 (Fla. 1981)).
The sole distinction between lewd molestation as a crime punishable by life
under section
800.04(5)(b) and lewd molestation punishable as a second-degree
felony under section
800.04(5)(c)2 is the age of the victim.4 As set forth above, the
4
Section
800.04 is titled “Lewd or lascivious offenses committed upon or in
the presence of persons less than 16 years of age.” Various offenses are included in
this section, including lewd or lascivious battery, lewd or lascivious molestation, lewd
or lascivious conduct, and lewd or lascivious exhibition. These offenses are then
divided into degrees determined by the age of the victim and the age of the offender.
The pertinent portion of
800.04(5) for lewd or lascivious molestation provides as
follows:
6
trial court sentenced Lincoln to life in prison based on the crime of lewd and
lascivious molestation on a victim under twelve years of...
...nto
degrees, the jury may find the defendant guilty of the offense charged
or any lesser degree supported by the evidence. The judge shall not
instruct on any degree as to which there is no evidence.
Fla. R. Crim. P. 3.490.
Section 800.04(5)(a)-(e) clearly divides the crime of lewd or lascivious
molestation into degrees based upon the age of the victim and the perpetrator.
Therefore, rule 3.490 permits the jury to find the defendant guilty of the offense
charged or a...
...And the victim testified repeatedly that
she was twelve at the time of the offense. That fact is not in dispute. Thus, the jury
was properly instructed on the lesser-included offense based on the evidence
9
presented and found Lincoln guilty of each element required by section
800.04(5)(c)2....
...found guilty by the jury. The State urges us to use section
924.34, Florida Statues,
to correct this error. It argues that section confers authority upon us to reverse and
remand for the trial court to enter judgment for the second-degree felony under
section
800.04(5)(c)2....
...ntence based
on that judgment, we reverse. We remand to the trial court to vacate the judgment
and sentence, for preparation of a corrected scoresheet and corrected PSI, and entry
of a judgment and sentence for the crime of lewd molestation under section
800.04(5)(c)2....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 20892, 2011 WL 6843011
...nder. Determining that the trial court erred in granting the motion, we reverse. Samuels pled nolo contendere to one count of committing a lewd and lascivious battery on a child 12 years of age or older but less than 16 years of age, in violation of section 800.04(4)(a), Florida Statutes (2009)....
...1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person: (a) Was or will be convicted or adjudicated delinquent of a violation of s.
794.011, s.
800.04, s.
827.071, or s.
847.0135(5) or the person committed a violation of s.
794.011, s.
800.04, s.
827.071, or s.
847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s.
794.011, s.
800.04, s....
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 18322, 2004 WL 3023408
...We reverse because the facts do not show that the protections afforded Mr. Torres by the Double Jeopardy Clause have been violated. PROCEDURAL HISTORY In November 2002, an information was filed charging nineteen-year-old Jason Torres with lewd or lascivious battery, a second-degree felony violation of section 800.04, Florida Statutes (2002), for sexual activity with a minor twelve or older but under the age of sixteen....
CopyPublished | Florida 5th District Court of Appeal | 2012 Fla. App. LEXIS 22147, 2012 WL 6719476
...However, as the State properly concedes, Cramer’s judgment incorrectly designates his lewd or lascivious conviction as a life felony rather than a second-degree felony. Accordingly, we remand so that the scrivener’s error contained in count four can be corrected to read that the statute violated was section
800.04(4), Florida Statutes (1995), and that the offense was a second-degree felony. AFFIRMED and REMANDED. GRIFFIN, SAWAYA and PALMER, JJ., concur. . §
794.011(2), Fla. Stat. (1995). . §
800.04(4), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 12457, 1994 WL 708174
...eat. The only mention of section
907.041 in the opinion appears where the district court noted that it had never been suggested that the pretrial detention provisions of section
907.041 applied. In Bradwell , the defendant was charged with violating section
800.04(2), Florida Statutes, a second degree felony....
CopyPublished | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 40, 1988 Fla. App. LEXIS 5751, 1988 WL 138513
...robation, the trial court may “impose any sentence it originally might have imposed, with credit for time served and subject to the guidelines recommendation.” Id. In the instant case, appellant pled nolo contendere to two separate violations of § 800.04, Florida Statutes, a second degree felony punishable by a maximum sentence of fifteen years....
CopyPublished | Florida 2nd District Court of Appeal
...rson eighteen
years of age or older upon a child less than twelve years of age in
violation of section
794.011(2)(a), Florida Statutes (2020), a capital
felony, and of lewd or lascivious molestation of a child under the age of
twelve in violation of section
800.04(5)(b), Florida Statutes (2020), a life
felony....
CopyPublished | Florida 2nd District Court of Appeal | 2006 WL 3733322
...Michael McCain challenges the postconviction court's denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). McCain contends that the sentence he received for one charge of lewd or lascivious act (count 5), see § 800.04(4), Fla....
...The written sentence attached to the denial order supports McCain's factual assertion that, on count 5, he was sentenced to ten years' imprisonment followed by ten years' probation. Ordinarily, the second-degree felony offense at issue is subject to the statutory maximum sentence of fifteen years. See §
800.04(4); §
775.082(3)(c), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1991 Fla. App. LEXIS 12764, 1991 WL 272635
...as not clear and convincing. Finally, the victim’s vulnerability was directly related to her age, but age was a component of the crime with which Trimble had been convicted — lewd and lascivious act upon a child under the age of 16, condemned by section 800.04(3), Florida Statutes (1985)....
CopyPublished | Supreme Court of Florida | 1949 Fla. LEXIS 1067
The appellant, George Buford, was informed against for the violation of Section 800.04 , F.S.A., in the Criminal Court of Record of Dade County....
...He was placed upon trial, convicted and by the trial court sentenced to serve a period of six months at hard labor in the County Jail of Dade County, Florida. An appeal has been perfected here. It is contended that the evidence adduced by the State at the trial was legally insufficient to establish a violation of Section 800.04 , F.S.A....
CopyPublished | District Court of Appeal of Florida
forcibly kissing her neck, contrary to Florida Statute
800.04(6)(a) and (b).”
CopyPublished | Florida 1st District Court of Appeal | 1996 Fla. App. LEXIS 13159
recognized in the context of a prosecution under section
800.04, Florida Statutes. See State v. Raleigh, 686
CopyPublished | Florida 1st District Court of Appeal
...2
minutes, he walked away. B.R. testified concerning a similar incident while
spending the night at appellant’s house.
Appellant was found guilty of lewd or lascivious molestation of L.C. as
charged pursuant to section 800.04(5), Florida Statutes....
...lly
touches in a lewd or lascivious manner the breasts, genitals, genital area, or
buttocks, or the clothing covering them, of a person less than 16 years of age, or
forces or entices a person under 16 years of age to so touch the perpetrator.” §
800.04(5)(a), Fla....
...The offense is a second-degree
felony—punishable “by a term of imprisonment not exceeding 15 years”—if the
offender is 18 years of age or older and the victim is “12 years of age or older but
less than 16 years of age.” §§
775.082(3)(c);
800.04(5)(c)2., Fla....
...suffered any lasting psychological, moral or
physical harm whatsoever.
The particular statutory provision applicable in the present case classifies
appellant’s offense as a life felony where the offender is 18 years of age or older
and the victim is less than 12 years of age. § 800.04(5)(b), Fla....
...The trial court sentenced appellant,
who was 61 years old at the time of trial and had no prior convictions, to life
imprisonment under section
775.082(3)(a)4.a.(I), Florida Statutes (2011).
The statute provides that an offense “which is a person’s second or
subsequent violation of s.
800.04(5)(b),” must be punished by life imprisonment....
...unlawfully intentionally touch in a lewd or lascivious
manner the breasts, . . . or the clothing covering them, of
L.C., a person less than 12 years of age, . . . and the
defendant was 18 years of age or older, contrary to
Section 800.04(5)(b), Florida Statutes.
In sentencing Mr....
...Florida classifies appellant’s offense—lewd or lascivious
molestation by an adult—as a second-degree felony (two degrees lower) that is
punishable by a maximum sentence of 15 years’ imprisonment when the victim is a
child between the ages of 12 and 16. §§
800.04(5)(c)2.;
775.082(3)(c), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 6635765, 2013 Fla. App. LEXIS 20003
...He contends he merely stated what he was going to do, which, under Randall v. State,
919 So.2d 695 (Fla. 4th DCA 2006), does not amount to solicitation as a matter of law. The defendant in Randall was charged with soliciting a minor to commit a lewd or lascivious act. See §
800.04(6), Fla....
CopyPublished | Florida 5th District Court of Appeal
...R CURIAM. Appellant, Corey Samuel Wright, appeals the trial court’s denial of a rule 3.800(a) motion challenging his designation as a sexual predator. Fla. R. Crim. P. 3.800(a). Appellant pled to one count of lewd or lascivious battery pursuant to section 800.04(4)(a), Florida Statutes (2016)....
...he has previously been convicted of any qualifying, violation listed in section
775.21(4)(a)1.b., Florida Statutes (2016). Here, Appellant was not convicted of a capital, life, or first-degree felony. He was convicted of a second-degree felony under section
800.04(4)(a), which is a qualifying felony....
CopyPublished | District Court of Appeal of Florida | 9 Fla. L. Weekly 2600, 1984 Fla. App. LEXIS 16275
...t and the commission of a battery upon another person contrary to section
810.02, Florida Statutes, a first degree felony. Appellant's primary offense as convicted was lewd, lascivious or indecent assault on or in the presence of a child contrary to section
800.04, Florida Statutes, a second degree felony....
CopyPublished | Florida 3rd District Court of Appeal
...Geldens, Assistant
Attorney General, for appellee.
Before EMAS, LOGUE and LINDSEY, JJ.
EMAS, J.
INTRODUCTION
Torino Antwan Bentley appeals from his conviction and sentence for lewd
and lascivious battery on a child (twelve years or older but less than sixteen years
of age), in violation of section 800.04(4)(a), Florida Statutes (2013).1 We find no
error and affirm.
BACKGROUND AND PROCEDURAL HISTORY
On April 9, 2013, a City of Miami Police Commander, assigned to the State
Attorney’s Human Trafficking Task Force,...
...7
The trial court also properly prohibited the defense from introducing
evidence that the victim was the “initiator” of the sexual contact, as consent is not
a defense to the crime charged. See § 800.04(2), Fla....
...Accord, Bullington v. State,
616 So.
2d 1036, 1039 (Fla. 3d DCA 1993) (reversing conviction for sexual battery (under
section
794.011) because the State failed to prove lack of consent, but noting that,
had the State charged defendant with a crime under section
800.04, the evidence
would have sustained the conviction, since under that statute “neither the victim’s
consent nor the defendant’s belief that the victim is sixteen or older is a defense to
the crime charged.”)
Bentley con...
CopyPublished | Florida 5th District Court of Appeal | 1997 Fla. App. LEXIS 13964, 1997 WL 762006
...5th DCA 1995). Accordingly, we remand this cause to the trial court for the purpose of refashioning the condition of probation in order to minimize inadvertent violation. AFFIRMED in part; REVERSED in part; REMANDED. DAUKSCH and HARRIS, JJ., concur. . § 800.04, Fla....
CopyPublished | Florida 1st District Court of Appeal
...This view is consistent with State v. Brake,
796 So. 2d 522
(Fla. 2001), which concerned section
787.025(2)(c), Florida
Statutes (1997). That statute provided a certain penalty to a
person “who, having been previously convicted of a violation of
chapter 794, s.
800.04, or s....
...847.0135(5), or a violation of a similar
law of another jurisdiction,” performs a certain act. §
787.025(2)(c),
Fla. Stat. (emphasis supplied). The Supreme Court of Florida
wrote, “Brake was previously convicted of indecency with a child
in Texas, a crime which is similar to that proscribed under
Florida’s section
800.04.” Id....
...merely noted that the Texas law was “similar” to an enumerated
Florida law, just as the statute required. In fact, the crime of
“indecency with a child” in Texas can be committed when the
victim is sixteen years old, while the Florida crime identified in
section 800.04 requires that the victim be under sixteen. Compare
Texas Penal Code Ann. § 21.11 (West 1997) with § 800.04, Fla.
Stat....
...ation.”
Fike,
63 So. 3d at 849.
The Fike court was correct in concluding that Dautel was
inapplicable in the sexual predator context. But it was also correct
in rejecting the State’s assertion that the Michigan law was not
“similar” to section
800.04, Florida Statutes for purposes of the
Sexual Predators Act.
The Michigan law at issue in Fike prohibited “[a]ssault with
intent to commit criminal sexual conduct involving sexual
penetration.” Mich. Comp. Laws Ann. § 750.520g(1). 6 It is unclear
whether there is a Florida counterpart to this crime. The State in
Fike argued that the lewd and lascivious offenses in section
800.04
were similar to the Michigan law, but the crimes under that
statute involve sexual acts upon persons under sixteen years old
where consent is irrelevant, neither of which is an element of the
Michigan crime....
CopyPublished | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 20080, 2014 WL 6910851
...3d 916, 917 (Fla. 4th
DCA 2014) (citing State v. Valera,
75 So. 3d 330, 331–32 (Fla. 4th DCA
2011)).
Lewd or lascivious molestation of a child under twelve is a life felony,
punishable as provided in section
775.082(3)(a)4., Florida Statutes.
§
800.04(5)(b), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 18853, 2004 WL 2827003
...Count 2 alleged that Roberson: then being 18 years of age or older, did intentionally force or entice [K. A.], a person 12 years of age or older but less than 16 years of age, to touch in a lewd or lascivious manner his genitals, by causing his penis to touch [K.A.’s] face, contrary to Section 800.04(5), Florida Statutes....
..., genitals, genital area or buttocks, or clothing covering them, of a person 12 years of age or older but less than 16 years of age, [K.A.], by touching, rubbing or fondling, over the clothing, [K.A.] breasts or buttocks or vaginal area, contrary to Section 800.04(5), Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 15798
BOARDMAN, Judge. Appellant/defendant timely appeals the adjudication of guilt to the offense of indecent assault upon a child in violation of Section 800.04, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 11935, 1993 WL 492540
...private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place." This violation is also a misdemeanor. Section 800.04 forbids certain conduct upon or in the presence of a minor; this provision, however, is a felony....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2771, 1989 Fla. App. LEXIS 6713, 1989 WL 145750
PER CURIAM. Appellant was charged in three separate informations with committing a lewd and lascivious act in the presence of a child under the age of sixteen, contrary to section 800.04(3), Florida Statutes (1987)....
...Specifically, it was charged in each information that appellant presented to a child a photograph of his genitalia. Appellant filed a sworn motion to dismiss, arguing that the alleged conduct actually constitutes a violation of section
847.011, but not section
800.04(3)....
...The trial court denied the motion, and the appellant pled nolo contendere to all charges, specifically reserving the right to appeal the denial of the motion to dismiss. We find that the appellant’s conduct in the instant case does not constitute a violation of section 800.04(3), as appellant did not commit a lewd act in the presence of a child....
CopyPublished | Florida 6th District Court of Appeal
...of the judgment that should be corrected. Accordingly, on remand, the trial court is
directed to amend the written judgment to include that Chavez was tried by a jury
and to correct the statutory citation to show that Chavez was convicted of violating
section 800.04(4)(a)1., Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 8300, 1996 WL 446697
...ld. The defendant cross-appeals a sentencing issue. By second amended information, the defendant was charged with two counts of capital sexual battery, section
794.011(2), Florida Statutes, and two counts of lewd and lascivious assault upon a child, section
800.04(1), Florida Statutes....
CopyPublished | Florida 2nd District Court of Appeal
...LaROSE, Judge.
Jaime Serrano-Delgado appeals his judgment and sentences for
battery, capital sexual battery, and lewd or lascivious molestation of a
child under the age of twelve. See §
784.03(1)(a), Fla. Stat. (2020);
§
794.011(2)(a), Fla. Stat. (2020); §
800.04(5)(b), Fla....
...Serrano-Delgado's argument that he was
entitled to a twelve-person jury in his non-capital case.1
The State charged Mr. Serrano-Delgado with three counts of capital
sexual battery and one count of lewd or lascivious molestation of a child
under the age of twelve. See §
794.011(2)(a); §
800.04(5)(b). The offenses
occurred between March 1, 2020, and May 18, 2020. The trial court
empaneled a six-person jury for trial because a 12-person jury was not
required for the charged crimes. See §§
794.011(2)(a);
800.04(5)(b);
913.10, Florida Statutes (2020); State v....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 10956, 2009 WL 2392900
...Kennett, Assistant Attorney General, Tallahassee, for Appellee. ROBERTS, J. In this criminal appeal, the appellant challenges his conviction for attempted lewd and lascivious molestation on a person under 12 years of age by an offender over 18 years of age, in violation of section 800.04(5)(b), Florida Statutes (2007)....
CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 11033, 2001 WL 877286
POLSTON, J. Appellee Joshua M. Metzler (“JMM”) was charged with committing a sexual act with a child under the age of 16 in violation of section 800.04(3), Florida Statutes....
...At the time of the alleged offense, the Complainant was fifteen having been born on September 18, 1984. The difference in the ages between the Defendant and the Complainant was approximately 19 months. 3. The facts presented require the Court to apply the ruling enunciated in J.A.S. v. State,
705 So.2d 1381 (Fla.1998). 4. Section
800.04, Florida Statutes furthers a compelling state interest in the health and welfare of children. 5. Section
800.04, Florida Statutes, attaches reasonable sanctions for such sexual conduct where prosecuted through the rehabilitative juvenile justice system. 6. The unique facts of this case would result in an unconstitutional application of Section
800.04, Florida Statutes, in violation of the Defendant’s rights to privacy and equal protection should he be prosecuted as an adult....
...The case shall be transferred to the juvenile division of this Court for further proceedings. - Because we believe that the trial court misapplied the ruling of the Florida Supreme Court in J.AS. v. State,
705 So.2d 1381 (Fla.1998), we reverse and remand for further proceedings. Section
800.04(3), Florida Statutes (1997) 2 , states that a person who “[c]om-mits an act defined as sexual battery under s....
...degree. 3 The constitutionality of this statute has been upheld, and a *567 minor may be charged with violating the statute. Jones v. State,
640 So.2d 1084 (Fla.994)(“we approve the decision of the district court upholding the constitutionality of section
800.04, Florida Statutes”; rejecting a right of privacy argument); J.A.S.,
705 So.2d at 1383 & n....
...1998). The trial court, noting the ages of JMM and the complainant, and citing J.A.S., ruled that prosecution of JMM as an adult would violate his rights to privacy and equal protection. We do not agree. The Florida Supreme Court in J.A.S. ruled that section 800.04 was not unconstitutional as applied to two 15-year-old boys who engaged in “consensual” sex with two 12-year-old girls. The Court approved the Fifth District Court of Appeal’s reversal of the trial court. The trial court in J.AS., as in this case, ruled that section 800.04 was unconstitutional as applied because it violated their right to privacy and equal protection....
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 5978
...The defendant was tried on 3 April 1970 in the Criminal Court of Record for Palm Beach County, Florida, under an informa *272 tion which charged that on 5 March 1969 he handled a male child under the age of fourteen years in a lewd, lascivious and indecent manner in violation of F.S.1969, section 800.04, F.S.A....
...Because the matter will be tried again, we believe that some discussion relative to issues raised by the appellant’s first point may be of assistance. Under Point I the appellant contends that the information was defective because it charged in one count a violation of two statutes, namely, F.S.1969, sections 800.04 and 801.041, F.S....
...ld Molester Act.) The information did not specifically refer to F.S.1969, section 801.041, F.S.A. It was captioned, however, “Information For Violation of Child Molester Law.” The substance of the information, and an express reference therein to section 800.04, show that the defendant was charged with a violation of F.S.1969, section 800.04, F.S.A....
...Also under Point I the appellant complains of extensive references in the jury instructions to F.S.1969, section 801.-041, F.S.A. We believe that it was error to include these references in the instructions, although standing alone, we do not believe that such was reversible error. F.S.1969, section 800.04, F.S.A., reads, in part, as follows: “Any person who shall handle, fondle or make an assault upon any male * * * child under the age of fourteen years in a lewd, lascivious or indecent manner * * * shall be deemed guilty of a felony....
...There is some dicta in other cases which suggest a contrary conclusion, hut we believe that those cases do not really squarely decide the issue. See for example, Baker v. State, Fla.App.1967,
194 So.2d 687 , wherein the Second District states that the Child Molester Law and F.S. section
800.04, F.S.A., both prohibit the offense defined in F.S. section
800.04, F.S.A....
...chapter 801, F.S.A., was to accord special treatment for those disturbed persons who are known as child molesters. The words “* * * lewd and lascivious behavior. * * *” which appear in F.S.1969, section 801.041, F.S.A., refer to the offense defined by F.S.1969, section
800.04, F.S.A., and serve to bring within the penal and rehabilitative provisions of F.S.1969, chapter 801, F.S.A., those persons convicted of a violation of F.S.1969, section
800.04, F.S.A. Thus the penal provisions of F.S.1969, section
800.04, F.S.A., have been totally superceded by penal and rehabilitative provisions of F.S.1969, chapter 801, F.S.A., Baker v. State and Fritzberg v. State, supra. For the reasons mentioned above, there was no relation between F.S.1969, section
800.04 and chapter 801, F.S.A., that would have justified mention of the latter in the jury instructions, except to the extent necessary to advise the jury of the penalty to which defendant might be subject upon conviction in compliance with F.S.1969, section
918.10(1), F.S.A....
CopyPublished | Florida 2nd District Court of Appeal
or lascivious molestation, in violation of section
800.04(5)(b), Florida Statutes (2009), and one count
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 11410, 2004 WL 1736795
...He argues that he did not qualify for sexual predator designation and that the Florida Sexual Predator Act vio *220 lates procedural due process. We agree that Meyers did not qualify for sexual predator designation and reverse. Meyers was convicted of lewd and lascivious battery, a second-degree felony in violation of section 800.04(4), Florida Statutes (2001). An offender convicted of a violation of section 800.04 as a second-degree felony shall be designated a sexual predator if the offender has previously been convicted of or found to have committed, or pled nolo contendere or guilty to, regardless of adjudication, any of certain statutorily enumerated offenses....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 3763559, 2012 Fla. App. LEXIS 14640
...We also note that under section
958.14, Florida Statutes (2005), a youthful offender who commits a substantive violation of probation can be sentenced to the maximum sentence allowable for the original crime. Therefore Mistretta’s eight-year prison sentence for one count of lewd and lascivious battery is legal. See §
800.04(4), Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 6583, 1990 WL 126172
...We, accordingly, reverse appellant’s conviction and sentence for sexual battery on count I. A jury found appellant guilty of three counts of capital sexual battery on a child under twelve in violation of section
794.011, Florida Statutes (1985), and two counts of lewd assault on a child under sixteen in violation of section
800.04, Florida Statutes (1985)....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 4605573, 2013 Fla. App. LEXIS 13932
...Finally, the court’s ruling clearly addressed only this argument, and counsel never sought a ruling on any other basis. Thus, we conclude that the only issue raised on appeal was not preserved, and affirm. AFFIRMED. SAWAYA, ORFINGER and LAWSON, JJ., concur. . See § 800.04(5)(c)2„ Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 13485, 2014 WL 4270940
...Thomas Mauldin appeals the summary denial of his motion for
postconviction relief. See Fla. R. Crim. P. 3.850. He is serving a forty-year prison
sentence for lewd and lascivious molestation of a victim less than twelve years old. See
§ 800.04(5)(b), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 12671, 2009 WL 2632225
...The Hernando County Sheriff's Office Arrest Affidavit/First Appearance form, dated September 28, 2007, reflects that Frank was arrested on two charges: one count of capital sexual battery under section
794.011, Florida Statutes, and one count of Lewd and Lascivious Molestation *130 under section
800.04, Florida Statutes....
...The affidavit also reported that both the victim and a witness had said that Frank performed oral sex on this victim. Frank also admitted the fondling incident with the female child. Frank was charged in a two-count information on October 29, 2007. Both counts charged lewd and lascivious molestation under section 800.04(5)(a) & (b), Florida Statutes....
...In February 2008, Frank entered into a plea agreement with the State. The agreement listed the two offenses contained in the information, reciting that each was punishable by a life sentence. Under the plea agreement, Frank agreed to plead guilty to one count of lewd/lascivious conduct under section 800.04(6)(a) Florida Statutes, a second-degree felony, and receive a sentence of forty-two months in the Department of Corrections and five years of sex offender probation....
...rst-degree felony offenses with which he was charged expired before he was charged. The statute of limitations for a first-degree felony is four years, but when the victim is under eighteen years of age, the statute of limitations for a violation of section 800.04(5) is four years from when the victim reached the age of eighteen or when the violation was reported to a law enforcement agency, whichever occurs earlier....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 9259, 1992 WL 206365
...Appellant contends neither of the reasons provided by the trial court constitute valid reasons for departure. We agree, and reverse and remand for resentencing. In circuit court case number 89-513, appellant was charged with two counts of lewd and lascivious assault upon two children under the age of sixteen, in violation of section 800.04, Florida Statutes....
...Subsequently, he was determined to be competent, and on August 8, 1990, he pled nolo *35 contendere to the charges in case number 89-513. In circuit court case number 91-715, appellant was charged with one count of lewd and lascivious assault upon a child under the age of sixteen, in violation of section 800.04, Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 12718, 2015 WL 5023063
...years old, and progressed from
long hugs to tongue kisses and groping.
The State charged Cotton by Information with one count of lewd or
lascivious molestation by an adult on a child between twelve and sixteen years of
age, in violation of section 800.04(5)(c)2, Florida Statutes (2009); and two counts
of lewd or lascivious conduct by an adult on a child under 16 years of age, in
violation of section 800.04(6)b, Florida Statutes (2009).
Count One (lewd or lascivious molestation) alleged that between March 1
and July 30, 2009, Cotton did unlawfully, intentionally and in a lewd or lascivious
1Williams v....
...For the purposes of this paragraph, the term “child molestation”
means conduct proscribed by s.
787.025(2)(c), s.
787.06(3)(g), former
s.
787.06(3)(h), s.
794.011, excluding s.
794.011(10), s.
794.05,
former s. 796.03, former s. 796.035, s.
800.04, s....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 10915, 2000 WL 1206372
...He further contends that these statutes are unconstitutionally vague because they have been applied in an arbitrary manner. We find no constitutional infirmity with the statutes and affirm. As a result of having sexual intercourse with a female under the age of sixteen, Green was charged, pursuant to section 800.04(3) 1 with committing an act defined *912 as sexual battery upon a child under the age of sixteen years....
...Because we find sections 921.0011(7)(b) and 921.0014(l)(a), Florida Statutes (1997), to apply equally to both males and females, we find no constitutional infirmity. Accordingly, Green’s sentence is affirmed. WHATLEY and DAVIS, JJ., Concur. . Pursuant to sections 800.04(3) and (4), any person who commits an act defined as sexual battery under s....
CopyPublished | District Court of Appeal of Florida
PER CURIAM. The direct and circumstantial evidence was sufficient to carry to the jury the issue of whether appellant knowingly committed a lewd and lascivious act in the presence of a child under the age of 14. Section 800.04, Florida Statutes (1977)....
CopyPublished | District Court of Appeal of Florida | 2012 WL 3629372, 2012 Fla. App. LEXIS 14164
...Because both offenses are punishable by a term of imprisonment up to fifteen years, we reverse and remand for entry of a judgment of acquittal for the offense which scores lower on the sentencing guidelines. AFFIRMED in part; REVERSED in part. SAWAYA and JACOBUS, JJ., concur. . § 800.04(4)(a), Fla. Stat. (2003). . § 800.04(5)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 12052, 2017 WL 3616394
...penetration, to allege that appellant engaged in sexual activity with the
victim by causing “[a]n object, to wit, his finger(s) to penetrate the [victim’s]
vagina.” The state, however, did not seek to change the statute alleged to
have been violated, section 800.04(4)(a)....
...In the instant case, count III of the original information charged
appellant with oral penetration, while count III of the amended information
charged appellant with digital penetration. Both the original and amended
information alleged a violation of section 800.04(4)(a). Section
800.04(4)(a), Florida Statutes (2013), provides that a person “commits
lewd or lascivious battery” when he “[e]ngages in sexual activity with a
person 12 years of age or older but less than 16 years of age.” “Sexual
activity” 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 other object.” § 800.04(1)(a), Fla. Stat. (2013).
We find the trial court erred in permitting the amendment. Although
the amendment did not change the crime charged, that being section
800.04(4)(a), the amendment did change an essential element of the
charged offense from oral to digital penetration....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 3614134, 2017 Fla. App. LEXIS 12006
...physical, mental, or emotional health to be significantly impaired." "Harm" is defined to
include "lewd or lascivious acts, as defined in chapter 800," §
39.01(30)(b), which
includes lewd or lascivious molestation, lewd or lascivious conduct, and lewd or
lascivious exhibition, §
800.04(5), (6), (7), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1995 Fla. App. LEXIS 8878, 1995 WL 497197
PER CURIAM. We affirm the appellant’s conviction and term of probation imposed upon his entry of a plea of nolo contendere to a charged violation of section 800.04, Florida Statutes (1991)....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 3588370, 2012 Fla. App. LEXIS 14004
...e the postconviction court’s order and remand for further proceedings. In 2010, Contreras-Garcia was charged with lewd molestation on a child under twelve by a person over eighteen. The amended information states that the offense is a violation of section 800.04, Florida Statutes, and is a life felony. The judgment indicates that he entered a guilty plea to the purported lesser-included offense of “LEWD/LASC MOLES-TATN VICT UNDER 12, DEF OVER 18, a lesser[-]included offense.” The judgment states that the offense is a violation of section 800.04 and is a first-degree felony....
...a was involuntary because he thought he was pleading to a lesser-included second-degree felony, but the judgment and plea form lists the offense as a first-degree felony and there is no first-degree felony of lewd and lascivious molestation found in section 800.04, Florida Statutes (2009); therefore, he pleaded to a nonexistent crime; (2) his counsel was ineffective for allowing him to plead to a nonexistent crime; (3) his counsel was ineffective for failing to object when the prosecutor switche...
...the offense as “LEWD/LASC MOLESTATN VICT UNDER 12, DEF OVER 10, a lesser[-] included offense.” The judgment identifies the degree as “FI.” The offense in this case was alleged to have occurred on September 26, 2009. Under the 2009 version of section 800.04, Florida Statutes, the offense of lewd and lascivious molestation of a child under twelve by a person over eighteen is a life felony. § 800.04(5)(b). The other types of lewd and lascivious molestation listed in the statute are second- and third-degree felonies. § 800.04(5)(c)(l)-(2), (d). Therefore, there is no first-degree felony lewd and lascivious molestation. Furthermore, the other types of prohibited conduct in section 800.04 are either second- or third-degree felonies. § 800.04(4) (lewd and lascivious battery), (6) (lewd and lascivious conduct), & (7) (lewd and lascivious exhibition)....
...on the quality of the copy, but it appears to contain the phrase "lewd molestation (F2)." . We also point out that even though Contreras-Garcia argued that he would not qualify as a sexual predator if he was convicted of a second-degree felony under section
800.04, see §
775.21(4)(a)(l), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2012 WL 3588174, 2012 Fla. App. LEXIS 13894
...He is not eligible to file a petition after sentencing. See §
943.04354(3). Mr. Clark’s petition alleges that he engaged in sexual activity with a fifteen-year-old girl on September 8, 2008, when he was eighteen years old. As a result, the State charged him with lewd and lascivious battery under section
800.04(4)(a), Florida Statutes (2008). In October 2009, he pleaded nolo contendere. The trial court adjudicated him guilty and placed him on one year of community control, followed by four years of probation as a sex offender. Persons who are convicted of violating section
800.04 are subject to substantial sex offender registration requirements....
...r sexual predator in special circumstances.— (1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person: (a) ... committed a violation of ... s. 800.04 ... for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of ... s. 800.04 ...; (b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and (c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation. (2) If a person meets the criteria in subsection (1) and the violation of ... s. 800.04 ......
...If the court denies the motion, the person is not authorized under this section to petition for removal of the registration requirement. (3)(a) This subsection applies to a person who: 1. Is not a person described in subsection (2) because the violation of ... s. 800.04 was not committed on or after July 1, 2007; [[Image here]] (b) A person may petition the court in which the sentence or disposition for the violation of ... s. 800.04 ......
...If the court denies the petition, the person is not authorized under this section to file any further petition for removal of the registration requirement. (Emphasis supplied). For defendants who are eligible for relief under subsection (1), the time to seek relief depends on whether the violation of section 800.04 was committed before or after midnight of July 1, 2007....
...n the motion at sentencing. See §
943.04354(2). For a defendant who committed an offense before July 1, 2007, there is no requirement that the motion be filed before sentencing. See §
943.04354(3). Because Mr. Clark did not commit his violation of section
800.04 before July 1, 2007, his petition filed under subsection (3) was unauthorized and could be denied, or perhaps stricken....
CopyPublished | Florida 1st District Court of Appeal
...s.
For the reasons that follow, we conclude that only four of the five
indecent exposure convictions must be vacated.
Facts
Appellant was charged with six counts of lewd or lascivious
exhibition, in violation of section
800.04(7)(a), (b), Florida Statutes
(2022), and five counts of indecent exposure, in violation of section
800.03(1), (2)(a), Florida Statutes (2022), based on allegations that
he exposed his penis and masturbated in the presence of eleven
individuals on July 24, 2022....
...t to make each
item subject to separate prosecution, and the use of the word “any”
suggests that the unit of prosecution is ambiguous. Bautista v.
State,
863 So. 2d 1180, 1183–84, 1188 (Fla. 2003); see also Rubio,
967 So. 2d at 777–78.
Section
800.04, Florida Statutes (2022), titled “Lewd or
lascivious offenses committed upon or in the presence of persons
less than 16 years of age,” provides in relevant part as follows:
2 Blockburger v....
...saw, heard, or otherwise sensed that the act was taking place”).
The statute defines “victim” as “a person upon whom an offense
described in this section was committed or attempted or a person
who has reported a violation of this section to a law enforcement
officer.” § 800.04(1)(d), Fla. Stat. (emphasis added).
3 The remainder of the statute, which proscribes lewd or
lascivious battery, lewd or lascivious molestation, and lewd or
lascivious conduct, similarly uses the language “a person,” except
in section 800.04(4)(a)2., which refers to “any person.” § 800.04,
Fla....
...for both lewd or
lascivious exhibition and indecent exposure arising from the same
criminal transaction violate double jeopardy. The two offenses are
separate because each requires proof of an element that the other
does not – age of the victim in section
800.04(7) and location in
section
800.03(1) –, and section
800.04(7) prohibits a wider range
of conduct such that a violation thereof can be established with
proof of an act other than exposure....
...cent
exposure do not violate double jeopardy.
Next, we must consider whether Appellant can be convicted of
multiple counts of lewd or lascivious exhibition arising out of a
single incident by determining the allowable unit of prosecution
under section 800.04(7)....
...1992), that
when a defendant commits a single act of lewd behavior in front of
multiple children, he cannot be convicted of a separate count of
lewd act for each child present. Hernandez does not control our
decision because the supreme court construed subsection (3) of
section 800.04, Florida Statutes (1987), which provided 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...
...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.
6
Id. (emphasis added). Section
800.04 was significantly amended
in 1999, with the revisions including the replacement of the phrase
“in the presence of any child” with the phrase “in the presence of a
victim.”
Section
800.04 now requires the prohibited act to be done “in
the presence of a victim who is less than 16 years of age,” and it
defines “victim” as “a person” upon whom the described offense
was committed or who reported a violation of the statute to the
police....
...proscribed by this section” and that “[t]he perpetrator’s ignorance
of the victim’s age, the victim’s misrepresentation of his or her age,
or the perpetrator’s bona fide belief of the victim’s age cannot be
raised as a defense in a prosecution under this section.”
§ 800.04(2), (3), Fla. Stat. The apparent purpose of section 800.04
is to protect children under sixteen from harm that can result from
exposure to lewd acts....
...section
800.09(2) used the word “a” instead of “any,” indicating
that “section
800.09(2)’s focus is on the number of employees
present during the commission of a lewd act, not the number of
distinct lewd acts committed.” Id. The same is true for section
800.04(7).
Based on the statutory language, the purpose of the statute,
the application of the a/any test, and Brown’s analysis of an
analogous statute, we conclude that the allowable unit of
prosecution under section
800.04(7) is the number of victims, not
the number of lewd acts....
...Therefore, we affirm Appellant’s
convictions and sentences on the six counts of lewd or lascivious
exhibition.
Finally, we look for the allowable unit of prosecution under
section
800.03 to determine whether Appellant can be convicted of
multiple counts of indecent exposure arising out of a single
incident. Unlike section
800.04(7), section
800.03(1) is not
amenable to the a/any test as it contains neither word in reference
to the victim....
CopyPublished | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 11478, 2001 WL 929765
PER CURIAM. Luis Aguilar was convicted of lewd and lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2000)....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 6267, 1990 WL 118957
...Several of the offenses were alleged to have occurred in 1981, during a period of time in which Constantine resided in the victim’s home. A second incident allegedly occurred during a visit in 1985. Among the charges stemming from the 1981 episodes were two counts of lewd assault, a second degree felony. § 800.04, Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal
...Cole, Jr., Carrabelle, pro se.
Ashley Moody, Attorney General, Tallahassee, and Pamela J.
Koller, Assistant Attorney General, Daytona Beach, for Appellee.
August 16, 2024
PER CURIAM.
Robert H. Cole, Jr., appeals his conviction for violating
section 800.04(5)(b), Florida Statutes (2021), and the trial court’s
sentence of life in prison, with a twenty-five-year mandatory
minimum provision, imposed after trial....
...See Prentice v. State,
319 So. 3d 57, 60–62 (Fla. 4th
DCA 2021) (determining that where the record leads to the firm
conclusion that the trial court intended to impose a sentence of life
in prison instead of a term-of-years sentence for the conviction
under section
800.04(5)(b), remand is appropriate for the
ministerial act of removing the erroneous inclusion of the twenty-
five-year mandatory minimum provision in the life sentence
without the defendant’s attendance).
AFFIRMED; REMANDED for corre...
CopyPublished | Florida 5th District Court of Appeal | 2013 Fla. App. LEXIS 12802, 2013 WL 4223320
...CURIAM. Appellant, Sean M. Tompkins, appeals the order denying the motion that he filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. He entered an open plea to the court to three counts of lewd and lascivious battery in violation of section 800.04(4)(a), Florida Statutes (2008)....
CopyPublished | Florida 1st District Court of Appeal | 1990 Fla. App. LEXIS 6360, 1990 WL 121405
...Counts 33 and 34 charged that the appellant made an assault in a lewd and lascivious or indecent manner by oral penetration. The sentencing court approved a scoresheet assessing 40 points for victim injury for each count with the apparent assumption that the appellant was charged with violation of section 800.04(2). Section 800.04, Florida Statutes (1985), provides that any person who: “(1) Handles, fondles or makes an assault upon any child under the age 16 years in a lewd, lascivious, or indecent manner ...,” or “(2) Commits an act defined as sexual batt...
CopyPublished | Florida 5th District Court of Appeal | 1990 Fla. App. LEXIS 6210, 1990 WL 117266
...custodial authority to the child which is proscribed by section 794.041, Florida Statutes, and the defendant was not convicted of that offense. The oral and anal penetration of the five year old victim, is likewise invalid. Lewd assault on a child (section 800.04, *825 Florida Statutes) now includes any act defined as sexual battery under section 794.-011(l)(h) upon any child under the age of 16 years....
...State,
495 So.2d 874 (Fla. 5th DCA 1986). The departure sentence is vacated and the cause remanded for entry of a guidelines sentence. See Pope v. State,
561 So.2d 554 (Fla.1990). SENTENCED VACATED; CAUSE REMANDED. DANIEL, C.J., and W. SHARP and COWART, JJ., concur. . Section
800.04, Florida Statutes. . Sections
777.04;
800.04, Florida Statutes.
CopyPublished | Florida 5th District Court of Appeal
...(2024).
In 2001, at the age of 26, Michael Crist, attempted to engage
in unlawful conduct with a minor under the age of 12. In 2002, he
pled no contest to violations of section
794.011(3), Florida
Statutes, (attempted sexual battery on a child under the age of
12), and section
800.04(5)(a) & (b), Florida Statutes, (lewd and
lascivious molestation), resulting in eight years in prison and
seventeen years of supervision....
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 4104463, 2013 Fla. App. LEXIS 12786
LEWIS, C.J. Appellant, Darrell Usry, challenges his conviction for lewd or lascivious exhibition pursuant to section 800.04(7), Florida Statutes (2011)....
...xual organs. The trial court denied the motion. Following Appellant’s testimony that he only urinated in front of the victim, and after the parties’ closing arguments, the trial court stated in part that the difference between section
800.03 and section
800.04(7), in a “non legal way of looking at it,” was the sexual intent versus an “obnoxious intent.” The trial court found that there was no way to conclude that Appellant’s conduct was anything “other than the sexual intent that’s necessary” for the charged crime....
...State,
889 So.2d 743, 765 (Fla.2004). We will not reverse a conviction that is supported by competent, substantial evidence. Id. In this case, we find no error in the denial of Appellant’s motion. The State charged Appellant with lewd or lascivious exhibition, a violation of section
800.04(7), Florida Statutes (2011)....
...act with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition. § 800.04(7), Fla....
...“a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.” Fla. Std. Jury Instr. (Crim.) *990 11.10(e). An offender eighteen years of age or older who commits the offense commits a second-degree felony. § 800.04(7)(b), Fla. Stat. (2011). In support of Appellant’s motion for judgment of acquittal, defense counsel argued that section 800.04(7) requires some “real obvious masturbatory act or something awfully close to it” and that the evidence showed at most a violation of section 800.08, Florida Statutes....
...Contrary to the arguments raised in favor of Appellant’s motion for judgment of acquittal, the Legislature did not only prohibit intentional masturbation or the intentional simulation of a sexual act in the presence of a child under the age of sixteen in section 800.04(7)....
...1st DCA 2009) (noting that a jury could reasonably infer from the appellant’s decision to expose himself during an online chat to someone whom he believed to be a thirteen-year-old girl that he was intentionally acting in a lewd or lascivious manner for purposes of section 800.04(7))....
...he trial court, the fact remains that Appellant’s repeated and intentional exposure of himself to a thirteen-year-old child while she waited at a school bus stop supports a guilty verdict on the charged crime of lewd or lascivious exhibition under section
800.04(7). Although section
800.03 prohibits the exposure of a person’s sexual organs, the statute does not specifically pertain to victims less than sixteen years of age as does section
800.04(7)....
CopyPublished | Florida 5th District Court of Appeal | 2003 Fla. App. LEXIS 12209, 2003 WL 21946399
...Wardell M. Sanders [“Sanders”] appeals the summary denial of this third Rule 3.800(a) motion to correct an illegal sentence. Sanders pled no contest in 1998 to an August 1996 lewd and lascivious assault upon a child, a second-degree felony under section 800.04(1), Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 12037, 2015 WL 4768957
...Accordingly, we affirm as to claims one and three, but reverse as to claim two, and remand for the trial court to strike claim two and give the defendant the opportunity to amend his motion. AFFIRMED in part; REVERSED in part; and REMANDED. ORFINGER and EDWARDS, JJ., concur. . § 800.04(4)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2008 WL 3357333
...5, 2007. We hold in this opinion that the trial court did not err in denying appellant's petition for relief from sexual offender registration and affirm. In 1999 appellant entered a plea to two counts of lewd and lascivious conduct in violation of section
800.04(4) and was sentenced to 2 years of community control and 8 years of probation, with formal adjudication of conviction being withheld. On the day of his conviction, section
943.0435(11) required all persons convicted of offenses under section
800.04(4) to register as a sexual offender "unless the sexual offender has had [e.s.] his or her civil rights restored." [1] The statute allowed an offender who has been released from the sanction imposed at sentencing and has been without fu...
CopyPublished | Florida 4th District Court of Appeal | 1999 Fla. App. LEXIS 10900, 1999 WL 606458
...ted to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved). AFFIRMED. ANTOON, C.J., and HARRIS, J., concur. . See § 794.01 l(8)(b), Fla. Stat. . See § 800.04(4), Fla....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 8439, 1993 WL 309053
...elines score-sheet points for victim injury, the trial court imposed a departure sentence without contemporaneous written reasons for the departure. Appellant argues that the evidence was insufficient to support the six convictions for violations of section 800.04(1) because the state failed in each count to establish that the appellant “assaulted” his victims....
...We likewise reject appellant’s contention that he was charged and tried for assaults, rather than fondling or handling, in five of the six counts. 1 We further agree with the trial court that the appellant was properly found guilty of the five counts of handling and fondling and the one count of assault under section 800.04(1)....
CopyPublished | Florida 4th District Court of Appeal
...case numbers
2015CJ000846A (“the 2015 case”), 2016CJ000247A (“the 2016 case”),
and 2018CJ000176A (“the 2018 case”).
K.D. was placed on probation in the 2015 case for lewd or lascivious
conduct by an offender under 18 in violation of section 800.04(6)(c),
Florida Statutes (2015)....
CopyPublished | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 7994, 1994 WL 419595
...Accordingly, we affirm the adjudication of guilt, vacate the sentence, and remand with directions to resentence Patterson pursuant to a corrected scoresheet. AFFIRMED in part; Sentence VACATED; REMANDED to Resentence. GOSHORN and THOMPSON, JJ., concur. . §
794.011(2), Fla.Stat. (1989). . §
800.04(1), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 11779, 2014 WL 3765447
...Garcia penetrated the
victim's vagina with his finger. The jury instruction actually given allowed the jury to
convict him upon evidence that his finger had "union" with the victim's vagina. Evidence
of such "union" would be sufficient to prove lewd or lascivious molestation under section
800.04(5), Florida Statutes (2011), but it would not support a conviction for capital
sexual battery.1
Because this error was not preserved in the trial court, the primary
question is whether the error is fundamental....
...3d 735, 741 (Fla.
2013) ("[F]undamental error occurs in a jury instruction where the instruction
pertains to a disputed element of the offense and the error is pertinent or material
to what the jury must consider to convict.").
1
Section 800.04(5)(a) defines lewd or lascivious molestation as
"intentionally touch[ing] in a lewd or lascivious manner the breasts, genitals, genital
area, or buttocks, or the clothing covering them, of a person less than 16 years of age,
or forc[in...
...On remand, however, both the prosecutor and the defense counsel
may need to give further thought to whether attempted capital sexual battery is a lesser
offense and, in light of the allegations in the information that the act was committed in a
lewd or lascivious manner, whether section
800.04(5)(b) may be a permissive lesser
-7-
offense in this case. Cf. Williams v. State,
957 So. 2d 595 (Fla. 2007).3
Reversed and remanded.
NORTHCUTT, J., Concurs.
CASANUEVA, J., Concurs in result only.
3
We note that section
800.04(5)(b) was added by legislative amendment
after our decision in Garcia v. State,
976 So. 2d 676 (Fla. 2d DCA 2008) (affirming trial
court's denial of another defendant's request to instruct jury on lewd or lascivious
molestation under section
800.04(5)(a), Florida Statutes (2004), as a permissive lesser-
included offense of capital sexual battery where statutory elements of lewd or lascivious
molestation were not alleged in the information)....
CopyPublished | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 11798, 2007 WL 2189118
...The State properly concedes error and thus we reverse and remand for further proceedings consistent with this opinion. On May 18, 2005, the State charged Torgerson with two crimes: (1) lewd or lascivious battery on a person between 12 and 16, contrary to section
800.04(4)(a), Florida Statutes, and (2) sexual battery— great force not used, a violation of section
794.011(5), Florida Statutes....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Jun 4, 2024
...lying statute” and consider “what conduct constitutes a single
offense.” Id. (citations omitted).
The indictment here charged Pulido with violating 18
U.S.C. § 2422(b), in conjunction with Fla. Stat. §§ 800.04(4)(a) and
(b)....
...e and imprisoned not
less than 10 years of life.
Here, the criminal “sexual activity” that served as the hook
for § 2422(b)’s application was “lewd or lascivious battery” under
Fla. Stat. § 800.04(4)....
...Encouraging, forcing, or enticing any person less
than 16 years of age to engage in sadomasochistic
abuse, sexual bestiality, prostitution, or any other act
involving sexual activity.
Fla. Stat. § 800.04(4)(a) (2014). The Florida statute defines “sexual
activity” as “the oral, anal, or vaginal penetration by, or union
with, the sexual organ of another or the anal or vaginal penetra-
tion of another by any other object.” Id. § 800.04(1)(a)....
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 3992, 2000 WL 347093
PER CURIAM. Alfred Washington appeals his conviction and sentence for lewd assault on a child under the age of sixteen in violation of section 800.04(1), Florida Statutes (1997)....
...for sexual indulgence” as described in Chesebrough v. State,
255 So.2d 675, 677 (Fla.1971). He argues that his brushing, touching, or caressing the victim outside her clothing could only support a conviction for simple battery. We disagree. Under section
800.04(1), Florida Statutes (1997), a person is guilty of a: [l]ewd, lascivious, or indecent assault or act upon or in the presence of a child [if he or she] [h]andles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner....
...The Fifth District Court of Appeal reversed, holding that because “[t]he legislature has not precisely defined ‘lewd and lascivious’ behavior, ... it is up to a jury to decide, based upon the totality of the circumstances, whether or not [the defendant’s] behavior violated” section 800.04(1), Florida Statutes (1991)....
...We hold, as the court did in Mitchell , that the record supports the trial court’s decision to deny appellant’s motion for judgment of acquittal and to-permit the jury to decide “based upon the totality of the circumstances” whether appellant’s actions constituted a violation of section 800.04(1), *328 Florida Statutes (1997)....
...Under these facts, the trial court did not abuse its discretion in denying appellant’s motion for mistrial. See James v. State,
741 So.2d 546 (Fla. 4th DCA1999). Accordingly, we affirm appellant’s conviction and sentence for lewd assault on a child under the age of sixteen, pursuant to section
800.04(1), Florida Statutes (1997)....
CopyPublished | Florida 6th District Court of Appeal
... Count 2 was fundamentally defective resulting in a conviction for an uncharged
offense. No argument of error was raised as to Count 3.
We find merit only in Sylvaince’s claim that his judgment and sentence in
Count 1 for the crime of lewd or lascivious molestation under section 800.04(5)(b),
Florida Statutes (2021), against a victim less than twelve years of age, was improper.
As to Counts 2 and 3, the judgment is affirmed without further comment. We reverse
and remand for the trial court to vacate the judgment on Count 1 for lewd or
lascivious molestation under section 800.04(5)(b)....
...did not testify, nor was there any other evidence presented at trial that
Sylvaince touched K.A.W. or that K.A.W. touched Sylvaince.
On August 12, 2021, Sylvaince was arrested on charges of lewd or lascivious
exhibition by a person 18 years of age or older, pursuant to section
800.04(7)(b), and
battery, pursuant to section
784.03....
...of acquittal was required on Count 1
because the State presented no evidence that Sylvaince touched K.A.W. or that
K.A.W. touched Sylvaince. The State argued to the trial court and now argues on
appeal that a “touching” is not required under section 800.04(5)(a)-(b) and that the
crime of lewd or lascivious molestation is complete upon the act of enticement alone.
The trial court denied Sylvaince’s motions for judgment of acquittal, and the
jury returned a verdict of guilty as to all counts....
...4
elements of the crime beyond a reasonable doubt after viewing the evidence in the
light most favorable to the State.” Knight,
186 So. 3d at 1012; see also Baugh v.
State,
961 So. 2d 198, 204 (Fla. 2007).
Section
800.04 sets forth a series of lewd or lascivious offenses committed
upon or in the presence of persons less than 16 years of age. The legislature has
designated the acts within section
800.04 that require physical contact and those that
do not. In particular, four separate subsections of section
800.04 set forth the various
crimes related to this type of lewd or lascivious behavior:
(4) Lewd or lascivious battery.—
(a) A person commits lewd or lascivious battery by:
1....
...lascivious exhibition commits a felony of the second degree, punishable
as provided in s.
775.082, s.
775.083, or s.
775.084.
In this case, the arresting officer initially arrested Sylvaince and charged him
with lewd or lascivious exhibition in violation of section
800.04(7)(b), a felony of
the second degree and simple battery, a first-degree misdemeanor....
...Count 3 - lewd and lascivious exhibition, a second-degree felony.
By its charging decision in Count 1, lewd and lascivious molestation, the State
chose to move forward and accept the burden of proving each of the elements set
forth in section 800.04(5)(a)-(b), which reads as follows:
(5) Lewd or lascivious molestation.—
(a) A person who intentionally touches in a lewd or lascivious manner
the breasts, genitals, genital area, or buttocks, or the clothing cover...
...a lewd or lascivious manner. Nonetheless, the State claims that by having the victim
come into the bathroom and instructing her to “go on [her] knees,” Sylvaince
“enticed” the victim “to so touch” Sylvaince and that this action violated section
800.04(5)....
...nouns or verbs in a series, a prepositive or postpositive modifier normally applies to
the entire series.” Scalia & Garner, supra, at 147 (“Series-Qualifier Canon”).
Based on the charge brought in this case of lewd or lascivious molestation
under section 800.04(5)(a), the postpositive modifier “to so touch” modifies the
preceding verbs “forces or entices” and these actions, in turn, follow the first
prohibition contained in section 800.04(5)(a) of “[a] person who intentionally
touches in a lewd or lascivious manner . . . .” Id. (emphasis added). The evidence
presented at trial and the State’s argument failed to establish that a lewd or lascivious
touching occurred either by Sylvaince or by the child. There are no acts listed in
section 800.04(5)(a) for which physical contact is not required.
To read section 800.04(5)(a) in a way that eliminates the “touching”
requirement would be to read out of the statute the words “to so touch” following
the words “forces or entices a person.” “A fundamental canon of statutory
construc...
...ba cum effectu sunt accipienda).
None should be ignored. None should needlessly be given an interpretation that
causes it to duplicate another provision or to have no consequence.”).
The legislature included the words “to so touch” in section 800.04(5)(a);
therefore, those words must be given effect.
Moreover, the State’s interpretation of section 800.04(5)(a) wherein
enticement alone, without any touching, is sufficient to violate the statute is also
belied by the language of section 800.04(6)(a). Section 800.04(6)(a)2 specifically
and independently criminalizes an act where “a person solicits a person under 16
years of age to commit a lewd or lascivious act.” The charge of lewd and lascivious
molestation under section 800.04(5)(a) does not include the word “solicits” in its
prohibition. If solicitation to commit the act was sufficient for the completion of a
violation of section 800.04(5)(a), the language of the statute would have so stated as
it did in the very next section of 800.04.
Conclusion
Because the State failed to present any evidence in its case-in-chief that a lewd
or lascivious “touching” occurred either by Sylvaince of the child or by the child of
Sylvaince, t...
CopyPublished | Florida 5th District Court of Appeal | 2008 Fla. App. LEXIS 4828, 2008 WL 895835
PER CURIAM. We affirm Appellant’s convictions of two counts of lewd or lascivious molestation on victims less than twelve years old. See § 800.04(5)(b), Fla....
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 7107
PER CURIAM. The appellant, Ralph Hopkins, was charged in an amended information of lewd, lascivious or indecent assault or act upon or in the presence of a child in violation of Section 800.04, Florida Statutes, F....
CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 221, 2015 Fla. LEXIS 927, 2015 WL 1932145
...as an issue pursuant to
§
794.05(2), Fla._Stat., the jury should be instructed with respect to §
743.01
et seq.
11.10(a) LEWD OR LASCIVIOUS BATTERY
(ENGAGING IN SEXUAL ACTIVITY)
§
800.04(4)(a)1, Fla....
...Definitions. Give if applicable.
Lakey v. State,
113 So. 3d 90 (Fla. 5th DCA 2013).
-7-
“An object” includes a finger.
“Union” means contact.
Give if applicable.
§
800.04(1)(a), Fla. Stat.
However, any act done for bona fide medical purposes is not a lewd or
lascivious battery.
§
800.04(2), Fla. Stat.
Neither the victim’s (victim’s) lack of chastity nor victim’s (victim’s)
consent is a defense to the crime charged.
§
800.04(3), Fla....
...“Student” means a person younger than 18 years of age who is enrolled
at a school.
-8-
Lesser Included Offenses
LEWD OR LASCIVIOUS BATTERY (ENGAGING IN SEXUAL
ACTIVITY) — 800.04(4)(a)1
CATEGORY ONE CATEGORY TWO FLA....
...Comments
In 2014, the legislature created a lewd and lascivious battery classified as a
first degree felony if the defendant was 18 years of age or older at the time of the
crime and had a prior conviction for an enumerated crime. See § 800.04(4)(c), Fla.
Stat....
...the defendant’s age.
This instruction was adopted in 2007 [SC05-1434, October 25, 2007
969 So.
2d 245] and amended in 2015.
11.10(b) LEWD OR LASCIVIOUS BATTERY
(ENCOURAGING, FORCING OR ENTICING)
§
800.04(4)(ba)2, Fla....
...(Defendant) [encouraged] [forced] [or] [enticed] (victim) to engage
in [sadomasochistic abuse] [sexual bestiality] [prostitution] [or]
[any act involving sexual activity].
Definitions.
Give if applicable.
§ 800.04(1)(a), Fla....
...on another or receiving such harm oneself.
§
827.071(f) and §_847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act between a person and an
animal involving the sex organ of the one and the mouth, anus, or vagina of
the other.
§
800.04(2), Fla. Stat.
Neither the victim’s (victim’s) lack of chastity nor victim’s (victim’s)
consent is a defense to the crime charged.
§
800.04(3), Fla....
...rtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS BATTERY (ENCOURAGING, FORCING OR
ENTICING) — 800.04(4)(ba)2
CATEGORY ONE CATEGORY TWO FLA....
... Comments
In 2014, the legislature created a lewd and lascivious battery classified as a
first degree felony if the defendant was 18 years of age or older at the time of the
crime and had a prior conviction for an enumerated crime. See § 800.04(4)(c), Fla.
Stat....
...466 (2000) requires the jury to make at least one additional finding regarding
the defendant’s age.
This instruction was adopted in 2007 [SC05 1434, October 25, 2007
969 So.
2d 245] and amended in 2015.
11.10(c) LEWD OR LASCIVIOUS MOLESTATION
§
800.04(5), Fla....
...was less than 18 years of age at the time of the offense.
Definition.
The words “lewd” and “lascivious” mean the same thing: a wicked,
lustful, unchaste, licentious, or sensual intent on the part of the person doing
an act.
Give if applicable.
§ 800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§ 800.04(3), Fla....
...“Florida Virtual School” or the “K-8 Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS MOLESTATION — 800.04(5)
CATEGORY ONE CATEGORY TWO FLA....
...whether the defendant had a prior conviction for an enumerated crime. If this
enhancement is charged, Apprendi v. New Jersey,
530 U.S. 466 (2000) may require
the jury to make additional findings regarding the prior qualifying conviction
and/or the age of the victim involved. See §
800.04(5)(e), Fla. Stat.
This instruction was adopted in 2008 [
998 So. 2d 1138] and amended in
2013 [
109 So. 3d 721] and 2015.
11.10(d) LEWD OR LASCIVIOUS CONDUCT
§
800.04(6), Fla....
...wicked, lustful, unchaste, licentious, or sensual intent on the part of the person
doing an act.
Give if applicable.
To “solicit” means to ask earnestly or to try to induce the person
solicited to do the thing solicited.
§ 800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§ 800.04(3), Fla....
...“Florida Virtual School” or the “K-8 Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS CONDUCT – 800.04(6)
CATEGORY ONE CATEGORY TWO FLA....
...This instruction was adopted in 2008 [
998 So. 2d 1138] and amended in
2015.
- 16 -
11.10(e) LEWD OR LASCIVIOUS EXHIBITION
PRESENCE OF CHILD
§
800.04(7)(a), Fla....
...(Defendant) was less than 18 years of age at the time of the
offense.
Definitions.
Give if applicable
The words “lewd” and “lascivious” mean the same thing and mean a
wicked, lustful, unchaste, licentious, or sensual intent on the part of the person
doing an act.
§ 800.04(1)(a), Fla....
...on another or receiving such harm oneself.
§
847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§
800.04, Fla. Stat. See State v. Werner,
609 So.2d 585 (Fla. 1992).
“In the presence of” means that (victim) saw, heard, or otherwise sensed
that the act was taking place.
§
800.04(2), Fla. Stat.
Neither (victim’s) lack of chastity nor (victim’s) consent is a defense to
the crime charged.
§
800.04(3), Fla....
...Virtual School.”
“Student” means a person younger than 18 years of age who is enrolled
at a school.
Lesser Included Offenses
LEWD OR LASCIVIOUS EXHIBITION PRESENCE OF CHILD —
800.04(7)(a)
CATEGORY ONE CATEGORY TWO FLA....
CopyPublished | Florida 1st District Court of Appeal | 1999 Fla. App. LEXIS 5518, 24 Fla. L. Weekly Fed. D 1063
PER CURIAM. Conviction of a nonexistent crime is fundamental error. Under section 800.04, Florida Statutes (1997), “one cannot be convicted of a lewd and lascivious act upon a child under 12 years of age for conduct that ......
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 2725, 2009 WL 875828
...Dale Roger Leland appeals his judgment and sentence for lewd and lascivious molestation. Because the trial court allowed the presentation of improper Williams [1] rule evidence, we reverse and remand for a new trial. I. Mr. Leland was charged with violating section 800.04, Florida Statutes (2002), by engaging in the lewd and lascivious molestation of his twelve-year-old stepdaughter, S.V....
...abuse of discretion standard. See Ray v. State,
755 So.2d 604, 610 (Fla.2000); Kulling v. State,
827 So.2d 311, 312 (Fla. 2d DCA 2002). For the purposes of section
90.404(2)(b), "child molestation" is defined as "conduct proscribed by s.
794.011 or s.
800.04 when committed against a person 16 years of age or younger." §
90.404(2)(b)(2); see also Foreman v....
...incident did not meet either prong of section
90.404(2)(b)'s definition of "child molestation." First, S.W. testified that Mr. Leland touched her back, ear, and legs. None of these acts constitute a sexual battery under section
794.011 or a lewd or lascivious offense under section
800.04....
...DiGuilio,
491 So.2d 1129, 1135 (Fla.1986). In this instance, we find the State is unable to satisfy this heavy burden. Without the inadmissible evidence, the record contains no evidence to demonstrate Mr. Leland intended to touch S.V. in a lewd and lascivious manner. See §
800.04(5)(a) (a person must "intentionally touch[] in a lewd or lascivious manner" to commit lewd or lascivious molestation)....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 2714, 2009 WL 886231
...Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee; Timothy Brown, pro se, for Appellant. Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant appeals his conviction under section 800.04(5), Florida Statutes, on several points, only one of which bears comment....
CopyPublished | Florida 1st District Court of Appeal | 1998 Fla. App. LEXIS 4754, 1998 WL 204797
...The information charged him with the existing crime of unlawfully handling, fondling or assaulting a child under the age of 16 years in a lewd and lascivious manner, by penetrating the victim’s vagina with his finger, without committing the crime of sexual battery, under section 800.04, Fla....
...The case is further distinguishable from Jozens in that, in that case, the defendant had been convicted improperly of both sexual battery and lewd and lascivious conduct, since by virtue of the phrase “without committing the crime of sexual battery” in section 800.04, the two offenses are mutually exclusive, see State v....
...Further, in Jozens the court noted that because of the child’s age, “any activity proscribed in section
794.011(l)(h), perpetrated upon a victim of less than twelve years of age necessarily constitutes the crime of sexual battery and by definition cannot be considered lewd and lascivious conduct under section
800.04.” In the present ease, the appellant was convicted only of lewd and lascivious assault, and was not convicted of the crime of sexual battery, and the victim was not under age 12....
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 1534770, 2017 Fla. App. LEXIS 6006
...1st DCA 1992); and we remand the written judgment and sentence for correction of a scrivener’s error which designates Appellant’s lewd or lascivious exhibition convictions (Counts I and II) as third-degree felonies when they are *201 in fact second-degree felonies. § 800.04(7) (b), Fla....
CopyPublished | District Court of Appeal of Florida | 1996 WL 191048
Similarly, this court has stated that “[u]nder section
800.04(3), one cannot be convicted of a lewd and lascivious
CopyPublished | Florida 5th District Court of Appeal | 2007 Fla. App. LEXIS 6320, 2007 WL 1223452
...Charles Hayes appeals from the judgment and sentence rendered by the trial court after his conviction of sexual battery by a person over 18 upon a person less than 12 years of age in violation of section
794.011(2), Florida Statutes (2006), and lewd or lascivious molestation in violation of section
800.04(5)(b), Florida Statutes (2006)....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 1775547, 2013 Fla. App. LEXIS 6734
...penetrated the fifteen-year-old victim’s vagina with his penis without the victim’s consent and while she was physically helpless to resist. Five months later, the State amended the charge to lewd or lascivious assault upon a child, pursuant to section 800.04(1), Florida Statutes (1997). The amended information alleged that Appellant penetrated the victim’s vagina with his penis in a lewd, lascivious, or indecent manner without committing the crime of sexual battery. Section 800.04 specifies that the victim’s consent is not a defense to the crime....
...The trial court’s decision on a petition for removal of the sexual offender registration requirement is reviewed for an abuse of discretion. Clark v. State,
95 So.3d 986 (Fla. 2d DCA 2012). Under section
943.0435, a defendant convicted of violating section
800.04 is automatically designated a sexual offender and required to comply with the registration requirements of the statute....
...and lacked corroborating evidence. We agree. The language of section
943.04354(3)(b), Florida Statutes (2011), suggests that a hearing should be held: (b) A person may petition the court in which the sentence or disposition for the violation of ...
800.04 ......
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 978, 1986 Fla. App. LEXIS 9014
...F HABEAS CORPUS PER CURIAM. Petitioner seeks a writ of habeas corpus, arguing that he is entitled to reasonable bail and that the trial court erred in ordering pretrial detention. We agree. Petitioner is charged by information with two violations of section 800.04(2), Florida Statutes, by commission of sexual acts upon a child under 16 years of age....
CopyPublished | Florida 4th District Court of Appeal | 1992 Fla. App. LEXIS 4511, 1992 WL 80992
...The four convictions arise out of a criminal episode in the summer of 1986, involving only one victim. We affirm Jones’ four convictions without comment, except to express our agreement with the Fourth District’s analysis regarding Jones’ constitutional challenge to section 800.04, Florida Statutes (1985)....
CopyPublished | Florida 5th District Court of Appeal | 1994 Fla. App. LEXIS 3713, 1994 WL 140726
...one count of use of a child in a sexual performance. 4 Casado was sentenced to concurrent terms totalling 22 years in the Florida Department of Corrections followed by five years supervised probation. Casado appeals the constitutionality of sections 800.04 and 794.041(2)(b)....
...g a defense of consent; a defense which would be available had the defendant been charged with the same offense upon a child 16 years of age or older. We affirm his convictions and sentences. This court has previously upheld the constitutionality of section 800.04....
...We specifically uphold the constitutionality of section 794.-041(2)(b) based upon the reasoning in Jones. Id. We again certify to the Florida Supreme Court the question of whether the constitutional right to privacy renders unconstitutional those portions of section 800.04 and 794.041 providing that consent is not a defense to a prosecution for sexual activity with a minor under the age of 16. AFFIRMED. W. SHARP and GRIFFIN, JJ., concur. . § 794.041(2)(b), Fla.Stat. (1991). . § 800.04(3), Fla.Stat. (1991). . § 800.04(1), Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal | 1994 Fla. App. LEXIS 3715, 1994 WL 140736
...This sentence was a downward departure that had been agreed to by the state and defense. Johnson entered a plea of nolo contendere to appeal the constitutionality of the statute. We affirm his conviction and sentence. This court has previously upheld the constitutionality of section 800.04....
...We again certify to the Florida Supreme Court the same issue which we certified in Jones v. State,
619 So.2d 418 (Fla. 5th DCA), rev. granted,
629 So.2d 133 (Fla.1993), namely, whether the constitutional right to privacy renders unconstitutional that portion of section
800.04 which provides that consent is not a defense to a prosecution for sexual activity with a minor under the age of sixteen. AFFIRMED. HARRIS, C.J., and GOSHORN, J., concur. . §
800.04(3), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal
...the offense as a “sexual offense” for which he was “adjudicated as
a juvenile delinquent” in 1999. However, the order designating
Appellant as a sexual predator states that Appellant “has
previously been convicted or found to have committed . . . any
violation of s.
800.04,” and section
800.04 is one of the statutes
enumerated in section
775.21(4)(a)1.b.
3
CopyPublished | Florida 5th District Court of Appeal | 1997 Fla. App. LEXIS 3127, 1997 WL 149195
PER CURIAM. Harold Kevin Scott appeals his conviction for a lewd and lascivious act in violation of section 800.04, Florida Statutes (1993)....
CopyPublished | Florida 3rd District Court of Appeal | 1991 Fla. App. LEXIS 2917, 1991 WL 45196
PER CURIAM. Sidney Rubin appeals his conviction for two counts of attempt to commit a lewd and lascivious act in the presence of a child under the age of sixteen years. See § 800.04(3), Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 1980 Fla. App. LEXIS 15853
NORRIS, WILLIAM A., Jr., Associate Judge. Appellant pleaded nolo contendere to a charge of lewd assault upon a six year old female, a violation of section 800.04, Florida Statutes (1977)....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 5878
HOBSON, Judge. Defendant-appellant appeals a judgment •and sentence rendered pursuant to a jury verdict of guilty on an information charging appellant with the violation of Section 800.04, Florida Statutes, 1967, F.S.A....
...te an offense commonly known as ‘statutory rape,’ where the offense consists in having sexual intercourse with a female under statutory age, the offense may be either with or without the female’s consent.” We hold that the word “rape” in § 800.04, Fla.Stat., 1967, F.S.A., means common-law or forcible rape and the trial court was correct in so ruling. As was held in the Wilson and Morang cases, supra, “statutory rape” is not “rape” and if the legislature intended the defense, in § 800.04, Fla.Stat., 1967, F.S.A., of “without intent to commit rape” to include “statutory rape” it would have so stated....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 1689033, 2013 Fla. App. LEXIS 6482
....30(1), Florida Statutes (2010), because his offenses were committed before its effective date. We agree and reverse. In April 1997, Driscoll entered a guilty plea to eight sex offenses dating from October 17, 1994, to March 6, 1995, in violation of section 800.04, Florida Statutes (Supp.1994)....
...95-283, § 59, at 2688-90, Laws of Fla. The statute expressly states that it applies to “probationers or community eontrollees whose crime was committed on or after October 1, 1995, and who are placed under supervision for violation of chapter 794, s. 800.04, s....
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 5635, 2006 WL 1007249
...We agree and reverse. Robert Leveille was charged with multiple counts of child abuse and lewd or lascivious battery for contact with a thirteen-year-old child. In particular, counts I, III, VI, and VII charged Leveille with lewd or lascivious battery under section 800.04, Florida Statutes....
...“Lascivious” means lustful, normally tending to excite a desire for sexual satisfaction. The jury convicted Leveille of this lesser included crime in counts I, III, and VII, and found him not guilty on count VI. Despite the fact that the jury did not find Leveille guilty of a violation of section 800.04, the trial court assessed “sexual contact” points, because it found that the charged offense included sexual contact....
...njury must not be scored for an offense for which the offender has not been convicted.” Despite this prohibition, the trial court determined that the crime charged included a definition of sexual activity which included penetration or contact. See § 800.04(l)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 1964 Fla. App. LEXIS 4706
...The information charges that the appellee “did knowingly commit a lewd and lascivious act in the presence of” two named male children “under the age of fourteen years, by willfully and knowingly exposing the penis of Curtis Henry Peacock to the view of the said” two children which act was “lewd and lascivious.” Section 800.04 Florida Statutes (1963) F.S.A., provides: “Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit a...
...atute above quoted since it is comprehensible that the exposure of the penis-could have been in a lewd and lascivious manner; the attitude, manner and demeanor of the accused may have made the exposure “lewd and lascivious.” Since a violation of Section 800.04 (supra) is punishable in the state prison upon conviction the information charges a felony....
CopyPublished | Florida 4th District Court of Appeal
...reviewed de novo. McCaw
v. State,
395 So. 3d 1065, 1068 (Fla. 4th DCA 2024).
Contrary to Defendant’s argument, the trial court properly denied his
JOA motion because the evidence was legally sufficient to sustain his
conviction under sections
800.04(5)(a) and (b), Florida Statutes (2021).1
Here, it is undisputed that Defendant was eighteen or older, and the Victim
was under twelve....
...nner the breasts,
genitals, genital area, or buttocks, or the clothing covering them, of a person less
than 16 years of age, or forces or entices a person under 16 years of age to so
touch the perpetrator, commits lewd or lascivious molestation.” § 800.04(5)(a),
Fla. Stat. (2021). A lewd or lascivious molestation violation is a life felony when
the offender is eighteen or older and the victim is less than twelve. § 800.04(5)(b),
Fla....
...greater punishment than the legislature intended.’” (quoting
547 So. 2d
613, 614 (Fla. 1989))).
Here, the trial court imposed a lawful sentence of life imprisonment
pursuant to the Florida legislature’s expressed sentencing options for a
violation of section
800.04(5)(b)—a life felony. Thus, no sentencing error
occurred. See Prentice v. State,
319 So. 3d 57, 60 (Fla. 4th DCA 2021)
(explaining the two sentencing options for a section
800.04(5)(b) violation
are “a term of imprisonment for life” or a “split sentence” of at least a 25-
year imprisonment term followed by probation or community control for
the remainder of the offender’s life (citing §
775.082(3)(a)4.a., Fla....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 4893, 1999 WL 218703
...ear to him the juror was listening and was aware of the proceeding. In this case there was no abuse of discretion to deny a further investigation. See Ivey v. State,
132 Fla. 36 ,
180 So. 368 (Fla.1938). AFFIRMED. THOMPSON and ANTOON, JJ., concur. . §
800.04, Fla....
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 5426, 2011 WL 1451771
...s. However, we remand for resentencing with respect to the lewd or lascivious molestation count. Moody was sentenced on the lewd or lascivious molestation count under the Jessica Lunsford Act (JLA) and thus the crime was designated as a life felony. § 800.04(5)(b), Fla....
...Moody was charged and found guilty of committing the crime of lewd or lascivious molestation occurring on or before July 8, 2004, before the effective date of the JLA. Before the enactment of the JLA, the crime of lewd or lascivious molestation was a first-degree felony. § 800.04(5)(b), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...alleged that Mr. Jackson committed a sexual battery through penile-
vaginal contact, also in violation of section
794.011(2)(a); and Count III
alleged that Mr. Jackson committed lewd or lascivious molestation
through her touching of his penis, in violation of section
800.04(5)(b),
Florida Statutes.
Precipitating the State's information was Mr....
..."admission[s]" to one of the charged offenses, they were not the
statements the State was seeking to admit as a "confession or
admission." See §
92.565(3).2 Mr. Jackson stated that his daughter had
"touched it," which ostensibly referred to his daughter touching his
penis. See §
800.04(5)(a) (providing that "lewd or lascivious molestation"
occurs when "[a] person who intentionally touches in a lewd or lascivious
manner the breasts, genitals, genital area, or buttocks, or the clothing
covering them, of a person less than 1...
CopyPublished | Florida 4th District Court of Appeal
...In
Rochester, the defendant was convicted of lewd or lascivious molestation
of a child under the age of twelve. Id. at 973. The trial court decided that
it lacked discretion to sentence the defendant for less than a mandatory
minimum of twenty-five years pursuant to section
775.082(3)(a)4. for the
violation of section
800.04(5)(b)....
...The supreme court held that the use of “may” meant that the
trial court could only choose between the two sentencing alternatives in
the statute. Id. at 975. Thus, “while the statute does give the trial court
some discretion in which sentence it chooses to impose for violations of
section
800.04(5)(b), under the plain meaning of the statutory language
the trial court does not have the discretion to impose a sentence below the
twenty-five year minimum set forth in section
775.082(3)(a) 4.a(II).” Id.
With respect to the se...
...We thus reverse and remand for the trial court to impose a life
sentence. While this sentence may appear exceedingly harsh compared to
7
other offenses, such as lewd and lascivious battery of a child, which would
be a second-degree felony, see section 800.04(4)(b), Florida Statutes
(2022), the Legislature has clearly designated the commercial exploitation
of a child through human trafficking as a particularly egregious crime
which it intends for the State to prosecute to the fullest extent....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 1482855, 2013 Fla. App. LEXIS 5896
...On appeal, Pamblanco argues the trial court erred when it instructed the jury he could be convicted of the offense of solicitation of a child under sixteen to commit lewd or lascivious conduct if he merely believed the victim to be under sixteen. He contends under section 800.04(6), Florida Statutes (2011), the victim must be under sixteen years of age, this is an element of the offense, and the instruction as given was fundamental error....
...t. It therefore argues it was enough to show Pamblanco made a request that the victim perform what he thought was a lewd act by a minor and it is no defense that the victim was not an actual minor, as legal impossibility is not a defense in Florida. Section 800.04(6)(a)2., Florida Statutes (2011), provides “[a] person who ......
...solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct.” In addition, “[a]n offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree.” § 800.04(6)(b), Fla....
...The State argues that, due to the focus on intent, the offense is complete when a person asks another to commit a crime with the intent that the other commit the crime. See State v. Johnson,
561 So.2d 1321, 1323 (Fla. 4th DCA 1990); State v. Waskin,
481 So.2d 492, 493 (Fla. 3d DCA 1985). However, the intent aspects of section
800.04(6) are not as clear as advocated by the State. The authority relied on by the State pertains to section
777.04(2), Florida Statutes, the general criminal solicitation provision. There is no indication this section has any bearing on the definition of “solicitation” contained in section
800.04(6), Florida Statutes. More problematic for the State is that the age of the person solicited is an element of the offense of solicitation in violation of section
800.04(6). The statute provides “[a] person who ... solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct.” §
800.04(6)(a)(2), Fla....
...vious act is not a crime in Florida; it is a crime only if the person solicited is under sixteen years of age. Moreover, it is only a person who actually commits (versus attempts to commit) lewd or lascivious conduct who commits a felony. See, e.g., § 800.04(6)(b), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2002 WL 537973
*277and presented to the jury for deliberation. §
800.04(4), Fla. Stat. (1999). The prosecutor and defense
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 4226, 2000 WL 370269
PER CURIAM. The state appeals the sentence Amanda Stalvey received in the wake of her conviction for lewd and lascivious conduct with a fourteen year-old boy in violation of section 800.04(4), Florida Statutes (1997)....
...5th DCA) (en banc) (receding from State v. Smith,
668 So.2d 639 (Fla. 5th DCA 1996)), review granted,
744 So.2d 457 (Fla.1999); see also State v. Brooks,
739 So.2d 1223, 1225 (Fla. 5th DCA) (applying the reasoning of Rife in affirming a downward departure sentence for a conviction under section
800.04), review granted sub nom., State v....
...We reject the Rife court’s approach and adopt the view expressed in State v. Harrell,
691 So.2d 46 (Fla. 2d DCA 1997). There the Second District, relying on Scaife and Smith , held that willing participation cannot be a basis for downward departure in cases arising under section
800.04....
CopyPublished | Court of Appeals for the Eleventh Circuit
...8 U.S.C.
§ 1326(a)(2). Padilla pleaded guilty to the charge.
Preparation of Padilla’s pre-sentence investigation report revealed additional
facts. Prior to his earlier deportation, Padilla was charged by information with
violation of Florida Statute § 800.04, “Lewd, lascivious, or indecent assault or act
upon or in presence of child; sexual battery.” See FLA. STAT. ANN. § 800.04 (1987).
Padilla pleaded nolo contendere to the charge, a second degree felony under Florida
2
law, and he was sentenced to one year probation with the requirement that he serve
sixty days in jail....
...o his base offense
level based on a previous conviction for an aggravated felony. See United States
Sentencing Commission, GUIDELINES MANUAL, § 2L1.2(b)(1)(A) (Nov. 1998). In
order to resolve this issue, we must determine whether Florida Statute § 800.04
constitutes the aggravated felony “sexual abuse of a minor” under 8 U.S.C.
§ 1101(a)(43)(A), as referenced by U.S.S.G. § 2L1.2. Padilla also argues that because
1
Under the provisions of the Immigration and Nationality Act, the disposition of
Padilla’s § 800.04 charge is a conviction....
...United States v. Lazo-Ortiz,
136 F.3d 1282, 1284 (11th Cir.
1998).
IV. CONTENTIONS OF THE PARTIES
A. The Aggravated Felony Issue
Padilla contends that in order to determine whether violation of Florida Statute
§
800.04 constitutes an aggravated felony for purposes of the sentencing enhancement
of U.S.S.G....
...Padilla also notes
that there is no plain language in § 1101(a)(43)(A) indicating that this body of law
should not apply. Finally, because the federal sexual abuse statutes all require
physical contact with the victim, whereas the Florida lewd assault statute does not,
Padilla concludes that § 800.04 does not categorically constitute “sexual abuse of a
minor” under 8 U.S.C....
...use
of a minor” in the context of aggravated felonies in the immigration laws. In support
of this argument, the Government notes that over half of the listed aggravated felonies
2
Padilla does not conclude, however, that §
800.04 can never be an aggravated
felony for purposes of the § 2L1.2 enhancement. Citing our decision in Ramey v. INS,
55 F.3d
580 (11th Cir. 1995), Padilla points out that a conviction for violation of §
800.04 may qualify as
an aggravated felony if it independently satisfies the definition of a “crime of violence” under
§ 1101(a)(43)(F), which contains the requirement that the sentence for the offense be at least one
year. See 8 U.S.C. § 1101(a)(43)(F) (providing conviction for “crime of violence” with sentence
of at least one year is an aggravated felony); Ramsey v. INS,
55 F.3d 580, 583 (11th Cir. 1995)
(holding that Florida Statute §
800.04 is a “crime of violence” because it involves a substantial
risk that physical force may be used against the victim)....
...ederal statutory law, it explicitly
included the statutory cross-reference in the subsection. In the Government’s view,
absence of a cross-reference indicates an intention to rely on the plain meaning of the
terms. The Government concludes that § 800.04 clearly meets the plain meaning of
“sexual abuse of a minor.”
B....
...reference to other statutory provisions or by sentencing requirements, and reads,
starting with the heading, “(43) The term ‘aggravated felony’ means– (A) murder,
rape, or sexual abuse of a minor; . . . .” Id. § 1101(a)(43)(A).
Florida Statute §
800.04 criminalizes sexual offenses that do not rise to the level
of rape or sexual battery and which are committed against children under the age of
sixteen. See FLA. STAT. ANN. §
800.04 (1987).4 Because the statute is written in the
disjunctive, it encompasses acts involving victim contact as well as acts involving no
victim contact. Worling v. State,
484 So.2d 94, 94 (Fla. Dist. Ct. App. 1986). The
elements of the offense vary accordingly.5 Thus, as Padilla contends, §
800.04 does
4
At the time of Padilla’s conviction the statute read as follows:
Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery
Any person who:
(1) Handles,...
...ty of 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.
Fla. Stat. §
800.04 (1987).
5
For example, when a defendant is charged with violation of the statute for
committing a lewd or lascivious act in the presence of a child, the only elements are that the
10
not in every case require physical contact with the victim....
...monetary transactions in property derived from specific unlawful activity) if the amount of the
funds exceeded $10,000” as an aggravated felony).
14
of a minor” in § 1101(a)(43) includes a violation of Florida Statute § 800.04, with or
without victim contact. Because a violation of § 800.04 is “sexual abuse of a minor,”
the district court did not err in applying a sixteen-level enhancement for a prior
conviction for an aggravated felony pursuant to U.S.S.G....
...Nealy,
232 F.3d 825, 830 (11th Cir.
2000). Because this issue is raised for the first time in supplemental briefing, we
deem it waived. Id. at 830-31.
VI. CONCLUSION
Because a violation of Florida Statute §
800.04 qualifies as “sexual abuse of a
minor” under 8 U.S.C....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 209, 2014 WL 1408556, 2014 Fla. LEXIS 1208
...“While doing so, he touched her breasts.” Id. He was charged with one
count of sexual battery under section
794.011(8)(b), Florida Statutes (2006), 2 for
allegedly penetrating the victim’s vagina with his penis, and one count of lewd or
lascivious molestation under section
800.04(5)(a), Florida Statutes (2006), 3 for the
1....
...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; however, sexual
battery does not include an act done for a bona fide medical purpose.”
3. Section
800.04(5)(a) provides:
(a) A person who intentionally touches in a lewd or lascivious
manner the breasts, genitals, genital area, or buttocks, or the clothing
covering them, of a person less than 16 years of age, or f...
...The district court agreed with the reasoning of the First
District in Beahr v. State,
992 So. 2d 844, 847 (Fla. 1st DCA 2008), that “while
sexual battery includes an element not included in lewd or lascivious molestation,
the converse is not true.” Drawdy,
98 So. 3d at 171. The Second District stated
that section
800.04(5) does not specify whether the lewd touching must be done
with the perpetrator’s hands, but the record in this case does not disclose the
manner of touching....
...between takings, the number of owners of the items taken, and
whether intervening events occurred between the takings.
Id. at 704.
In Meshell, we upheld the defendant’s convictions of two counts of lewd or
lascivious battery under section 800.04(4) as distinct criminal acts not violating
double jeopardy....
...at 135. Additionally, because “the same sexual acts
proscribed in the sexual battery statute are also proscribed in the lewd [or]
lascivious battery statute, under which [the defendant] was charged,” we concluded
that “the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal
penetration) are of a separate character and type requiring different elements of
proof and are, therefore, distinct criminal acts.” Id. at 136.7 We found no double
7. In that case, we limited our review to section 800.04(4), which was the
only section at issue before the Fifth District in the case below....
CopyPublished | Florida 2nd District Court of Appeal
...but younger than sixteen should be dismissed because the State could never establish
the victim's age to be between twelve and sixteen due to the fact that when Duclos-
Lasnier arranged to meet the victim he was actually texting an adult sheriff's deputy.
See § 800.04(4)(a), Fla....
...Even though
he was actually communicating with a police officer portraying himself as a thirteen-
year-old girl, every reasonable inference indicates that Duclos-Lasnier attempted to
meet a thirteen-year-old girl in order to have sex with her; he clearly was not trying to
meet an adult police officer. See generally § 800.04(1)(d), Fla....
