Florida/Georgia Personal Injury & Workers Compensation

...of 107 that many types of sexual activity could reasonably cause physical injury to a child, not all sexual activity necessarily could reasonably cause physical injury to a child, particularly because, for purposes of Section 827.03, Fla. Stat. § 827.01(2) defines the term “child” to include anyone up to, though not including, the age of eighteen....

...ild abuse. See § 39.306, Fla. Stat. (2001). It is also apparent that the term "mental injury," as it applies to child abuse, has been used in a similar manner in section 415.503 and chapter 39, as well as chapter 827. For instance, as defined under section 827.01, "child abuse" includes intentional infliction of mental injury upon a child, as well as an intentional act that could reasonably be expected to result in mental injury to a child....

...cted to result in, serious physical or mental injury, or a substantial risk of death, to a child. § 827.03(3)(a), Fla. Stat. (1997). “ ‘Caregiver’ means a parent, adult household member, or other person responsible for a child’s welfare.” § 827.01(1), Fla....

..."Aggravated battery" is defined by section 784.045: (1) A person commits aggravated battery who, in committing battery: (a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or (b) Uses a deadly weapon. "Torture" is defined by section 827.01(3) as "every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused." This would appear to cover any "battery" greater than privileged discipline....

...Knight Bros. Paper Co., 118 So.2d 664, 667 (Fla. 1st DCA 1960). There is no contrary intent apparent in chapter 827. The word "torture" is used only once in chapter 827, that being in section 827.03(1)(b). Therefore, if the definition contained in section 827.01(3), Florida Statutes (1987), is to be given effect, it must be read into the phrase "willful torture" as used in section 827.03(1)(b)....

...mmits aggravated battery on a child; (b) Willfully tortures a child; (c) Maliciously punishes a child; or (d) Willfully and unlawfully cages a child. (2) A person who commits aggravated child abuse is guilty of a felony of the second degree... . [2] Section 827.01(3), Florida Statutes (1987), defines the term "torture," as used in chapter 827, to mean "every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused." [3] § 827.01(3)....

...visual depictions" of sexually explicit conduct by minors gave the defendant fair notice that the mailing of undeveloped film of such activities was thereby prohibited. Id. at 847 n. 4. Here, defendant does not raise the constitutional argument that section 827.01 *440 lacked definiteness such that it failed to provide fair notice that his conduct was prohibited....

...en. The statute also provides that lewd or lascivious molestation is a crime committed against someone under sixteen years of age. Further, by referencing chapter 827, this statute incorporates "any person under 18 years" as the definition of child. § 827.01(2), Fla....

...tute and its predecessor utilize substantially the same language to proscribe substantially identical conduct, although the current statute takes an outline form. Furthermore, the term "torture," as employed in the present statute, is now defined by Section 827.01(3), Florida Statutes (1975), as follows: "`Torture' means every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused." Rather than creating vagueness, as appellant contends, this statutory definition of torture lends clarity to the statute contested sub judice....

...ted-when a person “[kjnowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.” The statute defines a “child” as “any person under the age of 18 years.” § 827.01(2), Fla....

...STEVENSON and GERBER, JJ., concur. NOTES [1] Although not specifically raised as an issue on appeal, the trial court instructed the jury with an outdated definition of torture. See Cox v. State, 1 So.3d 1220, 1223 (Fla. 2d DCA 2009) ("Previous versions of section 827.01, Florida Statutes, defined torture for purposes of aggravated child abuse as `every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused.' However, this definition was deleted when chapter 827 was extensively amended in 1996.") (citation omitted)....

...3 ("[P]ortions of section 827.03 prohibit the `willful torturing' and `willful and unlawful caging' of children. This would seem to indicate that the legislature intended to proscribe conduct far more brutal than the spanking of a child by a parent."). Previous versions of section 827.01, Florida Statutes, defined torture for purposes of aggravated child abuse as "every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused." See Nicholson v. State, 600 So.2d 1101 (Fla.1992) (discussing what acts constitute torture under previous version of sections 827.01 and 827.03)....

...This was carried out over four months until the child died of starvation. Id. The supreme court concluded these acts and omissions were sufficient to constitute aggravated child abuse both as malicious punishment and willful torture as previously defined in section 827.01....

...ind of aggravated child abuse defined therein must consist of "acts." There was no change to the provisions of section 827.03(1)(b) concerning aggravated child abuse through willful torture, nor was there any change to the definition of "torture" in section 827.01(3)....

...to legislative approval of the judicial construction." 49 Fla.Jur.2d Statutes § 166 [p. 200] (1984). *1130 In response to a question from the state in its brief and from the trial court in its order about the failure of Jakubczak to recognize that section 827.01(3) defines "torture" to include an omission or neglect, we note that there appears to be no way to fully, i.e., without any logical doubt, square Jakubczak with section 827.01(3). But in balancing the reasoning used in Jakubczak, together with our additional reasoning in this opinion, against the reasoning which would be involved by using the definition in section 827.01(3) to arrive at a result contrary to that of Jakubczak, we conclude that section 827.01(3) should not control. To follow the definition in section 827.01(3) would result in an incongruity with otherwise manifested legislative intent....

..."Torture" may be commonly defined as "to inflict intense pain to body or mind for purposes of punishment ... or for sadistic pleasure." Black's Law Dictionary 1335 (5th ed. 1979). Also, while, technically, the facts that section 827.03(1)(b) addresses willful torture and section 827.01(3) only defines "torture" would not logically justify ignoring the section 827.01(3) definition, the inclusion of the word "willfully" in section 827.03(1)(b) may be taken to indicate that the legislature meant to criminalize in that section something worse than what was defined in section 827.01(3)....

...a child; (c) Maliciously punishes a child; or (d) Willfully and unlawfully cages a child. (2) A person who commits aggravated child abuse is guilty of a felony of the second degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [2] Section 827.01, Florida Statutes: (1) "Child" means any person under the age of 18 years....

...from a condition of physical or mental incapacitation due to developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living. § 827.01(2), Fla....

...The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community. As applied to a Child. § 827.01(1), Fla....

...breasts. The statements of L.D. and Sechrest were not conflicting — L.D. merely refrained from commenting on whether there had been physical contact. Jenkins also argues that Sechrest's statement by itself could not establish that Jenkins violated section 827.01 because she was not present at the time of the violation....

...llows: (1) "Aggravated child abuse" is defined as one or more acts committed by a person who: (a) commits aggravated battery on a child; (b) willfully tortures a child; (c) maliciously punishes a child; or (d) willfully and unlawfully cages a child. Section 827.01(3) defines "torture" as "every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused." [1] The state argued at trial that Appellant was guilty of aggravated child abuse by failing to protect Christina the night John beat her to death....

...The jury could have found that the evidence suggested that Appellant approved and condoned the attack up until the victim lost consciousness, and willfully intended the beating or torture to continue. The jury could also conclude that this prolonged abuse caused Christina "unjustifiable pain or suffering," as defined in § 827.01(3)....

...d, we cannot “say categorically that the offense is a crime of violence under the residual clause.” Chitwood, 676 F.3d at 976. When that is the case, we proceed to another stage: 35 The DuFresne court actually cited section 827.01, which defined only the terms “caregiver,” “child,” and “placement.” Fla. Stat. § 827.01 (1996). Elsewhere throughout the opinion, the DuFresne court cited section 827.03, which did define child abuse, not section 827.01. Thus, we assume that DuFresne’s quoted reference to 827.01 here, rather than 827.03, was inadvertent. 27  Case: 10-10676 Date Filed: 08/15/2013 Page: 28 of 45 The second way that a crime can come within the residual...

...d neglect with no bodily harm pursuant to sections 827.03(3)(a) and (c), Florida Statutes (2003). At issue in this case is whether a public school teacher can be deemed a "caregiver" for students during school *1079 hours, as that term is defined in section 827.01(1). We conclude that a public school teacher is a "caregiver," as defined by section 827.01(1), during school hours....

...ssroom. The State charged Christie with five counts of child neglect with no bodily harm under sections 827.03(3)(a) and (c). That statute defines "neglect of a child" as a caregiver's failure or omission to provide a child with care or supervision. Section 827.01(1), in turn, defines "caregiver" as "a parent, adult household member, or other person responsible for a child's welfare." Christie filed a motion to dismiss the complaint....

...ion 827.03. Moreover, the state argued that Christie was a section 827.03 "caregiver" because, as a school teacher, she stood in loco parentis to the students during school hours and was therefore an "other person responsible for a child's welfare." § 827.01(1), Fla....

...inition of "other person responsible for a child's welfare" in considering a neglect charge under section 827.03. That is because we conclude that a teacher falls within the plain meaning of "caregiver" during school hours as that word is defined in section 827.01(1). Section 827.03(3) criminalizes child neglect by a "caregiver." A "caregiver" in turn is statutorily defined as "a parent, adult household member, or other person responsible for a child's welfare." § 827.01(1), Fla....

...onsible for a child's welfare." Thus, because the statute's language is clear and unambiguous, the statute must be given its "plain and obvious meaning." Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). The plain and obvious meaning of "caregiver," in 827.01(1), has been applied to neglect prosecutions under 827.03(3)....

...Gross, 758 So.2d 86 (Fla.2000)(college has duty to protect students from dangers in mandatory internship placement). A person who stands in loco parentis to a child during school hours must obviously be deemed a "person responsible for the child's welfare" under section 827.01(1)....

rule fails." 3 Fletcher, Cyclopedia Corporations, § 827.1 at 158. (rev. ed. 1986). Amvest maintains that

...econd degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 827.03(3), Fla. Stat. (2009). As used in chapter 827, a “caregiver” is “a parent, adult household member, or other person responsible for a child’s welfare.” § 827.01(1), Fla. Stat. (2009). In its Order Granting Defendant’s Motion to Dismiss, the trial court determined the “other person responsible for a child’s welfare” portion of the definition of “caregiver” in section 827.01(1) “does not encompass the seventeen (17) year old Defendant in this case.” Without articulating a reason, the court looked to section 39.01(47), Florida Statutes (2009), which for purposes of chapter 39 defines *82 “other person responsible for a child’s welfare” to include “an adult sitter ......

...ble for the child’s care and welfare during those times. We note, however, that the State need not in every prosecution for child neglect show long term or regular babysitting responsibility to establish a defendant’s status as a caregiver under section 827.01(1)....

...of 107 that many types of sexual activity could reasonably cause physical injury to a child, not all sexual activity necessarily could reasonably cause physical injury to a child, particularly because, for purposes of Section 827.03, Fla. Stat. § 827.01(2) defines the term “child” to include anyone up to, though not including, the age of eighteen....

...Sakin and strike the definition of “torture” from the instruction on aggravated child abuse. In 1996, the legislature deleted the definition of torture from the section of the Florida Statutes that provides definitions for chapter 827 relating to abuse of children. See § 827.01, Fla....

...ability] [permanent disfigurement] or [ used a deadly weapon] A weapon is a “deadly weapon” if it is used or threatened to be used in a *898 way likely to produce death or great bodily harm. ■Definitions; — give—if—la—alleged—Fv& 827.01(3) “Torture” means — every -act-, omission, -or neglect by-which unnecessary or unjustifiable-pain or suffering is caused, Give if la or lc alleged “Willfully” means knowingly, intentionally, and purposely....

...Domenech confirmed that the pictures and videos were on his "computer," which he also referred to as an "unsecured laptop"; Mr. Domenech's answers regarding the "young girls" and "younger people" as being between the ages of "10 to 17" supported the detective's use of the phrase "underage girls," see § 827.01(2) (" 'Child' means any person under the age of 18 years."); and that Mr. Domenech's description of what the young girls were "doing" included "sex" in at least some of the videos supported the detective's use of the phrase "sexual conduct,...

...Even if preserved, it appears the statute’s definition of “caregiver” is broad enough to include Durand. The word “caregiver” as it relates to child abuse, means “a parent, adult household member, or other person responsible for a *382 child’s welfare.” § 827.01(1), Fla....

...from a condition of physical or mental incapacitation due to developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living. § 827.01(2), Fla....

...The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community. As applied to a Child. § 827.01(1), Fla....

means “any person under the age of 18 years.” § 827.01(1), Florida Statutes. Simple application of these

...[remain a dependent child].] [become a delinquent child].] [remain a delinquent child].] [become a child in need of services].] [remain a child in need of services].] Definition. § 827.01(12), Fla....

...Domenech confirmed that the pictures and videos were on his "computer," which he also referred to as an "unsecured laptop"; Mr. Domenech's answers regarding the "young girls" and "younger people" as being between the ages of "10 to 17" supported the detective's use of the phrase "underage girls," see § 827.01(2) (" 'Child' means any person under the age of 18 years."); and that Mr. Domenech's description of what the young girls were "doing" included "sex" in at least some of the videos supported the detective's use of the phrase "sexual conduct,...

been emancipated by order of the court." 13 Section 827.01(2), Fla. Stat., defines a "[c]hild" for purposes