S. L. S., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the accusatory pleading and facts supported a finding of lewd assault as a lesser included offense, even if not a necessarily lesser included offense.
Appellant was charged with sexual battery, but the trial court adjudicated him delinquent for lewd, lascivious or indecent assault after the state's c…
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WENTWORTH, Judge.
Appellant was charged by delinquency petition with the offense of sexual battery upon a person eleven years of age or younger. § 794.011(2), Florida Statutes. Following presentation of the state’s case, appellant’s motion for judgment of acquittal was granted as to the offense of sexual battery, and the cause proceeded on the offense of attempted sexual battery. At the close of all the evidence, appellant was adjudicated delinquent for the offense of lewd, lascivious or indecent assault under § 800.04, Florida Statutes (1979), which offense the trial judge found, over objection, to be a lesser included offense. On appeal, appellant contends he was adjudicated delinquent for an offense not within the charge against him. We affirm. Although lewd assault is not a necessarily lesser included offense (category three)1 of attempted sexual battery,2 we find that the accusatory pleading herein sufficiently alleged all of the elements of lewd assault and that the facts supported such a charge so that lewd assault was properly found to be a Brown category four lesser included offense.
The fact that attempted sexual battery and lewd assault are both second degree felonies does not in our opinion preclude a determination that lewd assault was a lesser included offense of attempted sexual battery. The discussion in Ray, supra, of “permissible lesser included offenses” appears to be directed to fundamental error issues not involved in the present case. We do not view Ray as imposing an absolute requirement that in order to be a proper lesser included offense under category three or four of Brown, the offense must be one subject to a lesser penalty.
AFFIRMED.
BOOTH and SHAW, JJ., concur. . See Brown v. State, 206 So. 2d 377 (Fla.1968).
. Walker v. State, 351 So. 2d 382 (Fla. 4th DCA 1977); Ray v. State, 403 So. 2d 956 (Fla.1981).
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Harrielson v. State, 441 So. 2d 691 (Fla. 5th DCA 1983)…esser included offense of lewd assault even under the “alleged evidence test” for permissible lesser included offenses discussed in Bell and reflected by category four of Brown and category two of the standard jury instructions. In S.L.S. v. State, 404 So. 2d 1105 (Fla. 1st DCA 1981), review denied, 415 So. 2d 1361 (Fla.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 ca…
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Isiah Walker v. State, 464 So. 2d 1325 (Fla. 5th DCA 1985)…e, there is no basis to argue that the elements of lewd and lascivious assault were sufficiently alleged as to make it a permissibly included lesser offense3 assuming that 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. . § 794.011(2), Fla.Stat. (1983). . § 800.04, Fla.Stat. (1983). . The Supreme Court Committee on Standard Jury Instructions in Criminal C…
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Dixon v. State, 506 So. 2d 55 (Fla. 3d DCA 1987)…(extortion lesser offense of armed robbery). It is a moot point whether, since they are both second degree felonies, extortion may be deemed a lesser offense of “simple” robbery. See Ray v. State, 403 So. 2d 956 (Fla.1981); but cf. S.L.S. v. State, 404 So. 2d 1105 (Fla. 1st DCA 1981), review denied, 415 So. 2d 1361 (Fla.1982). This is because the state did not request an instruction below on extortion and has thus waived its present appellate claim. Bean v. State, 469 So. 2d 768, 771 (Fla. 5th DCA 1985). Sinc…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Keller v. State, 351 So. 2d 382 (Fla. 4th DCA 1977)