section 800.04 assault charge in Florida

2012In 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 defendant committed a lewd, lascivious or indecent act by “committing a sexual battery upon [the victim].” The court appears to have found that this conflicted with the “without committing the crime of sexual battery” language

2012In 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 defendant committed a lewd, lascivious or indecent act by “committing a sexual battery upon [the victim].” The court appears to have found that this conflicted with the “without committing the crime of sexual battery” language

2006We found that "[t]he appellant's command to the girls to `give [him] some pussy' demonstrated the specific desire to handle or fondle the girls, and the appellant's act of repeatedly driving back by the girls can properly be viewed as a direct act in furtherance of this specific intent." 632 So.2d at 646 .

2006As 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).

1992As 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 the presence of a child focuses on the commission of the lewd act whether in the presence of one or more children, thus limiting the number of offenses that could be charged to one count f

1991The 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 the presence of a child focuses on the commission of the lewd act whether in the presence of one or more children, thus, limiting the number of offenses that could be charged to one count for each separate incident

1987In Young v. State, 506 So.2d 13 (Fla. 5th DCA 1987), the court apparently draws this conclusion, but unfortunately uses a term ("necessarily") usually associated with category 1 lesser included offenses.

1986Hightower v. State, 488 So.2d 106 (Fla. 5th DCA 1986), rev. granted, State v. Hightower, No. 68,717 (Fla. Sept. 15, 1986) (Oral argument scheduled for Jan. 27, 1987).

1986Relying 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).

1983In 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.

1983See n. 3, supra. Reviewing the evidence in a light most favorable to the State, the court found that the victim had consented to sexual intercourse with the defendant, and accordingly rejected the defendant's claim. 194 So.2d at 69 .

1983In 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.

1968Dickinson v. Geraci, Fla.App.1966, 190 So.2d 368, 388 .