The 2023 Florida Statutes
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Using the same analysis in Plott II, the Court finds that any Apprendi or Blakely error in this case was harmless error. The Defendant was convicted of a sexual battery with a deadly weapon under Florida Statute [Section] 794.011(3), a life felony punishable “for life or by a term of imprisonment not exceeding forty years.” Fla. Stat. §§ 794.011(3), 775.082(3)(a) (l985). However, under the 1983 sentencing guidelines, the Defendant's recommended sentence was seven to nine years' imprisonment and the permitted sentence was five-and-a-half to twelve years' imprisonment. As noted above, the Court departed from the guidelines and imposed a life sentence. Section 921.001(6), Florida Statutes (1985), provides that a departure sentence is permissible if explained in writing by the court. The Court identified three reasons for departing from the guidelines sentence: heightened premeditation, a particularly vulnerable victim, and the victim's psychological trauma.Appellant was charged with burglary of a dwelling with assault or battery, a first-degree felony punishable by life in prison, and sexual battery, under section 794.011, Florida Statutes, a second-degree felony. It was alleged that during the middle of the night Appellant entered the victim's residence she shared with her boyfriend, stealthily made his way to her bedroom where she was sleeping, sexually battered the victim, and then left the residence.By information filed May 1, 2017, in Escambia County Circuit Court Case 2017-CF-1996, the State of Florida charged Petitioner Christopher Altman with three counts of sexual battery of a child twelve years of age or older, but less than eighteen, by a person in familial or custodial authority, contrary to section 794.011(8)(b), Florida Statutes. Ex. A at 144-45.The offenses occurred between December 8, 2016, and April 6, 2017. Id.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; ....Appellant appeals his adjudication and sentence for two counts of sexual battery upon a mentally defective victim in violation of section 794.011(4)(e), one count of unlawful sexual activity with certain minors in violation of section 794.05(1), and one count of lewd or lascivious molestation upon a disabled adult in violation of section 825.1025(3). We remand to the trial court for the limited purpose of conducting an evidentiary hearing regarding appellant's criminal scoresheet. On the other issues raised, we affirm without further comment.Affirmed. See § 775.21(4)(a)1.a., Fla. Stat. (2014) (providing that a defendant "shall be designated as a 'sexual predator'" upon conviction of 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, or s. 794.011, s. 800.04, or s. 847.0145 . . . .") See also State v. McKenzie, 331 So.3d 666, 673 (Fla. 2021) ("The imposition of sexual predator status under section 775.21 is related to the underlying criminal offense-but is not itself a sentence or punishment"); § 775.21(3)(d), Fla. Stat. (2014) ("The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes").The following facts are undisputed. In late 2016, Jean Gerome was charged by information with one count of sexual battery, in violation of sections 794.011(5)(b) and 777.011, Florida Statutes. The case proceeded to trial, where Gerome was convicted as charged. He was sentenced to 94.50 months of incarceration, followed by three years of sexual predator probation.On October 7, 2013, Petitioner was charged with sexual battery on a person twelve years or younger by a person eighteen years or older in violation of section 794.011(2)(a), Florida Statutes-a capital felony subject to a mandatory life sentence in Florida. Dkt. 7-2 at 7. The State subsequently filed a notice of intent to use evidence of other crimes, wrongs, or acts against Petitioner in the proceeding. Id. at 20. On October 6, 2014, the state court held a hearing on the admissibility of minor witnesses C.L. and C.P.'s testimony concerning Petitioner's wrongdoing against minor victim A.D. Id. at 58. The state court did not rule on this issue before Petitioner entered into a plea agreement.On appeal, he challenges his convictions and sentences on three grounds. As to the second and third grounds, we affirm without further discussion. But as to the first ground, the State concedes that Ross was erroneously sentenced for two first-degree felonies when he was only convicted of second-degree felonies. See § 794.011(5)(b), Fla. Stat. (2018). The statutory maximum sentence for a second-degree felony is fifteen years in prison. § 775.082(3)(d), Fla. Stat. (2018). A probationary split sentence that exceeds the maximum period of incarceration provided for by statute is an illegal sentence. See State v. Holmes, 360 So.2d 380, 383 (Fla. 1978) (holding, among other things, "that a trial judge is authorized by Section 948.01(4)[*] to sentence a defendant to a period of incarceration followed by a period of probation" and "that the combined periods at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged"). Therefore, Ross' thirty-year sentences on each count are illegal. Based upon the State's proper concession of error, we vacate the sentences and remand for resentencing.. . . ." § 794.011(1)(h), Fla. Stat. (2015). . . . The information cited section 794.011, which does not use the term butt . . . .
. . . . § 794.011(4)(a) ("Sexual battery"). . . .
. . . Appellant points to the conclusive presumption embodied within section 794.011(2)(a), Florida Statutes . . . Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of . . . Schedule of Lesser Included Offenses, § 794.011. Khianthalat v. . . . The lack of consent presumption is not explicitly set forth in section 794.011(2), Florida Statutes ( . . . Id. ; see § 794.011(3) - (5), Fla. Stat. . . .
. . . of age), and with (Count Two) sexual battery (slight force), in violation of sections 800.04(4) and 794.011 . . . person other than the offender may not be admitted into evidence in a prosecution under s. 787.06, s. 794.011 . . . offense incited the sexual battery may not be admitted into evidence in a prosecution under s. 787.06, s. 794.011 . . .
. . . activity with a child while in a position of familial or custodial authority, in violation of section 794.011 . . .
. . . See § 794.011(8)(b) ; § 826.04 ; Olenchak v. . . . See § 794.011(8)(b), Fla. . . .
. . . ." § 794.011(1)(a), Fla. Stat. (2017). . . .
. . . . § 787.06(3)(g), 794.011(1), Fla. Stat. . . .
. . . See § 794.011(4) & (5), Fla. Stat. (2014). . . . See § 794.011(5)(b), Fla. Stat. (2014). . . .
. . . ." § 794.011(2)(a), Fla. Stat. (2013). . . .
. . . Appellant was charged with sexual battery on a person twelve years of age or older as prohibited by section 794.011 . . .
. . . by information with two counts of sexual battery on a mentally defective person pursuant to section 794.011 . . . arrested in July 2017 for two counts of sexual battery on a mentally defective person under section 794.011 . . .
. . . Florida Statutes, defines "sexual offense" to include the crime of sexual battery as codified in section 794.011 . . . Whisby was charged with three counts of sexual battery pursuant to section 794.011(3). . . .
. . . Graham, Jr., appeals his judgment and sentences for two counts of capital sexual battery under section 794.011 . . .
. . . Appellant's contention that the trial court improperly sentenced him to a first degree felony under section 794.011 . . .
. . . than eighteen years of age, by a person in familial or custodial authority in violation of section 794.011 . . . than eighteen years of age, by a person in familial or custodial authority in violation of section 794.011 . . . , "child molestation" includes, among other crimes, the sexual battery counts charged under section 794.011 . . .
. . . 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 . . .
. . . See § 794.011(3), Fla. Stat. (1993). Kidnapping is a first degree felony. See § 787.01(2), Fla. . . .
. . . for one count of sexual battery under specified circumstances under paragraphs (b) and (e) of section 794.011 . . . instruction at issue, and provides that mental incapacity includes intoxication without consent: § 794.011 . . . section provides that "[w]hen consent of the victim is a defense to prosecution under s. 787.06, s. 794.011 . . . incapacity in the sexual battery statute to include involuntary, and not voluntary, intoxication. § 794.011 . . .
. . . consent, and without physical force and violence likely to cause serious personal injury under section 794.011 . . .
. . . (1)(e), Florida Statutes (2010), or physically incapacitated under section 794.011(1)(j), Florida Statutes . . . (1)(e) and physically incapacitated under subsection 794.011(1)(j). . . . Section 794.011(1)(e), Physically Helpless In order to show that the victim was physically helpless, . . . any other reason physically unable to communicate unwillingness to an act" at all relevant times. § 794.011 . . . voluntary intoxication cannot rise to the level of physical incapacitation contemplated by section 794.011 . . .
. . . order mistakenly based the designation on a conviction for sexual battery upon a child under section 794.011 . . . appellant was convicted of armed sexual battery on a person over twelve but under eighteen under section 794.011 . . .
. . . ." § 794.011(1)(h), Fla. Stat. (2009). . . .
. . . ." § 794.011(2)(a), Fla. Stat. (2016). . . . Daniels with nine counts of sexual battery on a child under twelve-capital sexual battery, see § 794.011 . . . Section 794.011(2)(a) provides as follows: A person 18 years of age or older who commits sexual battery . . . Thus, when the legislature said in section 794.011(2)(a) that capital sexual battery is a capital felony . . . stating that "[n]otwithstanding our determination that the sexual battery proscribed by subsection 794.011 . . .
. . . ." § 794.011(1)(g), Fla. Stat. (2014). . . .
. . . 2012), and one count of sexual battery on a victim less than twelve (12) years of age under section 794.011 . . .
. . . Stat. § 794.011, sets out a list of applicable definitions. . . . Stat. § 794.011(1)(h). In United States v. . . . Stat. § 794.011(2) - (10). . . . Stat. § 794.011(3) ; Fla. Std. Jury Instr. 11.2 (1989). . . . Stat. § 794.011(3) is also a violent felony under the ACCA. . . .
. . . (1)(g) ; and (5) X.W. had been conceived as the result of a sexual battery made unlawful by section 794.011 . . . No one disputes that this was an unlawful sexual battery in violation of section 794.011. . . . and that X.W. was conceived as the result of a sexual battery on S.B. that was unlawful under section 794.011 . . . clear and convincing evidence that X.W. was conceived through unlawful sexual battery under section 794.011 . . . trial court's determination that X.W. was conceived through an unlawful sexual battery under section 794.011 . . .
. . . State, 520 So.2d 260, 265 (Fla. 1988) (holding that charging document which referenced section 794.011 . . .
. . . See § 794.011(2)(a), Fla. Stat. (2012). . . .
. . . . §§ 794.011(3), 775.082(3)(a)3., 794.0115(2)(b), Fla. Stat. (2013). . . .
. . . See §§ 794.011(6), 775.082(3)(c),' Fla. Stat (2009). . . .
. . . State, 616 So.2d 1036, 1039 (Fla. 3d DCA 1993) (reversing conviction for sexual battery (under section 794.011 . . .
. . . The pertinent statutory provisions are found in section 794.011, Florida Statutes (2010). . . . . § 794.011(l)(h), (3), Fla. Stat. (2010). . . .
. . . by a person 18 years of age or older on a person less than 12 years of age, in violation of section 794.011 . . .
. . . In April 2013, Brown was charged with 12 counts of sexual battery without serious injury (section 794.011 . . .
. . . in prison followed by ten years of probation for the sexual battery, which is a life felony, see § 794.011 . . . prison followed by ten years of probation for the attempted sexual battery, a first-degree felony, see § 794.011 . . .
. . . Additionally, the appellant’s three convictions for violating section 794.011(5), Florida Statutes (2010 . . . State, 909 So.2d 600 (Fla. 2d DCA 2005) (holding that an offender who violates section 794.011(5) must . . .
. . . Section 794.011(l)(h), Florida Statutes (2014), defines sexual battery as “oral, anal, or vaginal penetration . . . sjexual activity” in section 800.04(l)(a) is identical to the definition of sexual battery in section 794.011 . . . alleges that the victim was between ages twelve and fifteen in a count charging a violation of section 794.011 . . .
. . . familial or custodial authority, between June 23 and December 31, 2004, in violation of Florida Statute 794.011 . . .
. . . Can a person be held under a capital felony when the capital punishment was abolished for 794.011? . . .
. . . Stat. (2008), sexual battery involving great physical force, see § 794.011(3), Fla. . . .
. . . pertinent language provides: (2)Any person who is convicted of a violation of s. 787.025(2)(c); s. 794.011 . . . or older, and the person: (e) Has previously been convicted of a violation of s. 787.025(2)(c); s. 794.011 . . . The DSFO Act provides: Any person who is convicted of a violation of section 787.025; section 794.011 . . . Has been previously convicted of a violation of section 787.025; section 794.011(2), (3), (4), (5), or . . . : • Luring or enticing a child, section 787.025, Florida Statutes (2005); • Sexual battery, section 794.011 . . .
. . . See § 794.011(3), Fla. Stat. (1995). . . .
. . . . § 794.011(2) and two counts of lewd and lascivious molestation on a child under 12 years old in-violation . . .
. . . . §§ 775.082(3)(b); 777.04(4)(a); 794.011(2), Fla. Stat. (1989). . . .
. . . . § 794.011(8)(b), Fla. Stat. (2014). . . .
. . . See § 794.011(5), Fla. Stat. (2012). . . .
. . . .” § 794.011(1)(h), Fla. Stat. (2012). . . .
. . . battery of a child under the age of twelve by a person under the age of eighteen in violation of section 794.011 . . . —In addition to any sanction imposed for a violation of ... s. 794.011, or for any offense of domestic . . . s. 784.045, s. 784.048, s. 784.07, s. 784.08, s. 784.081, s. 784.082, s. 784.083, s. 784.085, or s. 794.011 . . .
. . . See §§ 775.082(2) & 794.011(2)(a), Fla. Stat.; Kennedy v. . . .
. . . . § 794.011(5), Fla. Stat. (2010). . . .
. . . —An action related to an act constituting a violation of s, 794.011 involving a victim who was under . . .
. . . (2009), is a separate offense from aggravated assault (section 784.021) and sexual battery (section 794.011 . . .
. . . any person other than the offender shall not be admitted into evidence in a prosecution under ... s. 794.011 . . . was convicted of attempted sexual battery with an object (namely, his fingers) pursuant to sections 794.011 . . . Background Portillo was charged with attempted sexual battery under sections 794.011(5) and 777.04(1) . . . and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011 . . . person other than the offender may not be admitted into evidence in a prosecution under s. 787.06, s. 794.011 . . .
. . . of sexual battery of a person 12 years of age or older, without physical force, contrary to section 794.011 . . .
. . . Florida’s crime of sexual battery (slight force) is governed by § 794.011(5) of the Florida code which . . . Stat. § 794.011(5) (West 2000). . . .
. . . term in Section 943.0435, Florida Statutes. (11) “Sexual offense” means a conviction under Section 794.011 . . . or apparent victim of the sexual offense was less than sixteen (16) years of age, excluding Section 794.011 . . . (a) It is unlawful for any person who has been convicted of a violation of Section 794.011 (sexual battery . . .
. . . . § 794.011(8), Fla. Stat. (2013). . . .
. . . 12 years of age by a defendant 18 years of age or older, a capital felony, in violation of section 794.011 . . . sexual battery by a familial or custodial authority, a first degree felony, in violation of section 794.011 . . . definition of sexual battery includes several alternatives, all of which constitute sexual battery. § 794.011 . . . The definitions contained in section 794.011, Florida Statutes, contemplate proof of sexual battery by . . .
. . . any other part of this section, whichever time is greater. (13)(a) If the victim of a violation of s. 794.011 . . . If the offense is a first or second degree felony violation of s. 794.011, and the offense is reported . . . (b) If the offense is a first degree felony violation of s. 794.011 and the victim was under 18 years . . . (c) If the offense is a violation of s. 794.011 and the victim was under 16 years of age at the time . . . on or before July 1, 2010. (14)(a) A prosecution for a first or second degree felony violation of s. 794.011 . . .
. . . with Great Bodily Harm Count 3 in the initial 2004 information charged sexual battery under section 794.011 . . .
. . . is not the victim’s parent or guardian; s. 787.06(3)(b), (d), (f), or (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. 810.145(8); . . .
. . . law enforcement agency or other governmental agency, whichever occurs earlier” for violations of “s. 794.011 . . . that the “Legislature finds that the least serious sexual battery offense, which is provided in s. 794.011 . . . battery and to be necessarily included in the offenses charged under subsections (3)-and (4)_” Section 794.011 . . . personal injury commits a felony of the second degree.... ” The Legislature’s characterization of section 794.011 . . . . §§ 794.011(2)(a), 775.082(1), Fla. Stat. (2000). . . .
. . . See § 794.011, Fla. Stat. (2011). At trial, the victim testified about the sexual encounter. . . .
. . . Appellant was charged with (Count 1) armed sexual battery, in violation of section 794.011(8), Florida . . . Judgment and Sentence, wherein it adjudicated Appellant guilty of both offenses charged, listed sections 794.011 . . . -Life, and the use of a deadly weapon was charged within the charge of sexual battery under section 794.011 . . . Count 1 charged Appellant with a violation of only section 794.011(3), Florida Statutes (1992), which . . .
. . . See §§ 775.21(4)(c)(l)(a), 794.011(4)(b), Fla. Stat. (1997); Sheppard v. . . .
. . . alleged that appellant “caus[ed] his penis to penetrate or unite with the anus of [C.B.] contrary to F.S. 794.011 . . . battery of a child by a person in position of familial or custodial authority, contrary to section 794.011 . . . Section 794.011(8)(b), Florida Statutes (1994), provided that a person who is in a position of familial . . . with, the sexual organ of another or the anal or vaginal penetration of another by any other object § 794.011 . . . See § 794.011(1)(h), Fla. . . .
. . . . § 794.011(2), and two counts of lewd and lascivious molestation, in violation of Fla. . . .
. . . term in Section 943.0435, Florida Statutes. (11) “Sexual offense” means a conviction under Section 794.011 . . . or apparent victim of the sexual offense was less than sixteen (16) years of age, excluding Section 794.011 . . . (a) It is unlawful for any person who has been convicted of a violation of Section 794.011 (sexual battery . . .
. . . . § 794.011 (sexual battery); Ga. Code Ann. § 16-6-1 (rape); Haw. Rev. Stat. . . .
. . . statute was enacted in 2010, and provides: An action related to an act constituting a violation of s, 794.011 . . . Section 794.011 is the sexual battery statute/- Section, 95.11(9),' therefore, provides that an action . . .
. . . 787.025(2)(c), where the victim is a minor and the defendant is not the victim’s parent or guardian; s. 794.011 . . . , excluding s. 794.011(10); s. 794.05; s. 796.03; s. 796.035; s. 800.04; s. 825.1025; s. '827.071; s. . . .
. . . See §§ 794.011(2)(a), 775.082(1), Flá. Stat. (2012). . . .
. . . . § 794.011(2)(a)',Fla. Stat;(2011). . . . lewd and lascivious molestation convictions and enter judgments of conviction pursuant to sec: tions 794.011 . . . (citing §§ 794.011(2)(a)(b), 775.082(1)-(3), Fla. Stat. (2011)). . . .
. . . . § 794.011(5) (1999) (making it a second degree felony to “commit[ ] sexual battery upon a person 12 . . .
. . . (Defen- 794.011(5)(b) • 11.4 dant 18 or Older, victim , 18 or Older)_;____ Sexual battery (Defen- 794.011 . . . In § 794.011(8)(c), Fla. . . . Stat., according to § 794.011(6)(a), Fla. . . . If § 794.011(4)(d), Fla. . . . If § 794.011(5)(d), Fla. . . .
. . . Section 794.011(3), Florida Statutes (2014), provides that “[a] person who commits sexual battery upon . . . upon a person 12 years of age or older, which is a lesser-included offense of the charged offense. § 794.011 . . .
. . . . §§ 775.082(3)(c); 794.011(5)(a), Fla. Stat. (2009). . . .
. . . . § 794.011(2)(a). . . .
. . . . §§ 775.082(3)(b); 777.04(4)(a); 794.011(2), .Fla. Stat. (1989). . . .
. . . . § 794.011(1 )(h), (2)(a), Fla. Stat. (2008). ' . § 800.04(5)(a), (b), Fla. Stat. (2008). . . . . Section 794.011(1 )(h) defines "sexual battery” as "oral, anal, or vaginal penetration by, or union with . . . .” § 794.011(h), Fla. Stat. (2008). . . . QUINCE, J., dissents with an opinion. . § 794.011(2)(a), Fla. Stat. (2008). . § 800.04(5)(b), Fla. . . .
. . . The court must accept a guilty plea or conviction of unlawful sexual battery pursuant to s. 794.011 as . . . proof that the child was conceived as a result of conduct constituting a sexual battery under section 794.011 . . . evidence that K.S. was conceived as a result of M.H.’s conduct deemed unlawful pursuant to section 794.011 . . . clear and convincing evidence, that K.S. was conceived as a result of conduct proscribed by section 794.011 . . . Affirmed in part, reversed in part, and remanded. , LEVINE and FORST, JJ., concur. .Section 794.011(8 . . .
. . . eighteen years of age upon a child less than twelve years of age, a violation of sections 777.04(1) and 794.011 . . .
. . . . — An action related to an act constituting a violation of s. 794.011 involving a victim who was under . . .
. . . his conviction for sexual battery upon a person twelve years of age or older in violation of section 794.011 . . . twelve years of age or older when the victim is physically helpless to resist in violation of section 794.011 . . . observed that the judgment and scoresheet indicates the defendant was convicted of violating' section 794.011 . . . twelve years of age or older when the victim is physically helpless to resist in violation of section 794.011 . . .
. . . “[T]he age of the defendant is an element of capital sexual battery under section 794.011(2).” . . . The trial court entered judgments of conviction under “section 794.011(2)(b) of the Florida Statutes, . . .
. . . Actual sexual battery of a person older than 12 years of age (§ 794.011(5), Fla. . . . 2011)); sexual battery by a person less than 18 years of age on a child less' than 12 years of age (§ 794.011 . . .
. . . . • Appellant was convicted of multiple felonies, including sexual battery under section 794.011(3), . . . For the purpose of a conviction under section 794.011(3),. the physical force element .does not require . . .
. . . of a child less than twelve years of age by a defendant eighteen years or older, pursuant to section 794.011 . . .
. . . two counts of sexual battery by a person in a position of familial authority in violation of Section 794.011 . . . Section 775.15(7) provided in relevant part: If the victim of a violation of s. 794.011 ... is under . . . The amendment provided that: [I]f the offense is a first degree felony violation of s. 794.011 and the . . . defendant was charged in January 1989 with, among other things, sexual battery in violation of section 794.011 . . . legislature amended the limitations period in 1985 to extend the statute of limitations for violations of 794.011 . . .
. . . of another or the anal or vaginal penetration of another by any other object” without consent. ' § 794.011 . . . Schedule of Lesser Included Offenses, § 794.011.”). . . .
. . . . § 794.011(2)(a). A judge sentenced him to consecutive life sentences. . . .
. . . WITHOUT A FIREARM 812.13 ■ 2F Cvl BURGLARY WITH A FIREARM 810.02 & 775.087 IF OO SEXUAL BATTERY WITH A 794.011 . . . 1994) (affirming conviction for sexual battery with a deadly weapon based on a principal theory); § 794.011 . . .
. . . 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. 827.071, . . .
. . . . § 794.011(2), and held in state custody pending his trial. . . .
. . . . § 794.011; Ga.Code Ann. § 16-6-5.1; Haw. . . .
. . . The defendant was convicted of violating section 794.011(8)(a), Florida Statutes (2012), for “committing . . .
. . . Florida Statutes, where the victim is a minor and the defendant is not the victim’s parent; or, Sections 794.011 . . .