CHRIS RUSAW, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that sexual battery of a child under 12, though no longer subject to the death penalty, remains a capital crime eligible for life imprisonment with a 25-year minimum mandatory sentence. The Court rejected the defendant's argument that removal of the death penalty automatically reduced the crime's sentencing classification.
The removal of the death penalty does not automatically reduce the crime to a non-capital life felony. Sexual battery of a child remains a capital crime eligible for life imprisonment with a 25-year minimum mandatory sentence, as the legislature intended all penalties in subsection 775.082(1) to apply to the extent constitutionally permissible.
[1] A crime remains a capital crime even if the death penalty is no longer constitutionally permissible for it, provided that alternative penalties remain.
[2] The legislature has the power to define crimes and set punishments.
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Join FLexlaw to unlock all legal intelligence“This Court has long held that a capital crime is one in which the death sentence is possible.”
Establishes the definition of capital crime that governs the case
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Join FLexlaw to unlock all legal intelligenceRusaw was convicted by jury of sexual battery upon a person eleven years of age or younger. The trial court sentenced him to life imprisonment with no…
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McDONALD, Justice.
The Second District Court of Appeal has certified its opinion in Rusaw v. State, 429 So. 2d 1378 (Fla. 2d DCA 1983), as being in direct conflict with Hogan v. State, 427 So. 2d 202 (Fla. 4th DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution, and we approve Rusaw.
A jury convicted Rusaw of sexual battery upon a person eleven years of age or younger by a person eighteen or older, and the trial court sentenced him to life imprisonment with no possibility of parole for twenty-five years. § 794.011(2), Fla.Stat. (1981); § 775.082(1), Fla.Stat. (1981). On appeal Rusaw argued that he could be sentenced for no more than a life felony because the crime he committed is no longer subject to the death penalty and is, therefore, no longer a capital crime. The district court affirmed the twenty-five-year minimum mandatory sentence.
In Buford v. State, 403 So. 2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982), we held that a death sentence for committing the crime proscribed by subsection 794.011(2) is so grossly disproportionate and excessive as to be constitutionally prohibited. We then reduced one of Buford’s death sentences to life imprisonment with no possibility of parole for twenty-five years, finding that to be an “automatic sentence” under subsection 775.082(1). Id. at 954. This Court has long held that a capital crime is one in which the death sentence is possible. Donaldson v. Sack, 265 So. 2d 499 (Fla.1972); Adams v. State, 56 Fla. 1, 48 So. 219 (1908).
We find, however, that the district court resolved the instant problem properly. As this Court held in Donaldson,
elimination of the death penalty from the statute does not of course destroy the entire statute. We have steadfastly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so.
265 So. 2d at 502. In subsection 794.011(2) the legislature has denominated certain conduct to be a “capital” crime and has provided alternative penalties for that crime. Buford’s striking of one of those penalties has not disturbed the other. See § 775.082(2), Fla.Stat. (1981).
We agree with the district court’s conclusion that the legislature intended that the penalties set out in subsection 775.082(1) be fully applied to the extent that they are constitutionally permissible. Death is no longer permissible for the sexual battery described in subsection 794.011(2), but life imprisonment with a twenty-five-year minimum mandatory is. Rusaw’s argument that his crime should be reduced automatically to a life felony ignores the legislature’s obvious intent.
It is well settled that the legislature has the power to define crimes and to set punishments. The legislature, by setting sexual battery of a child apart from other sexual batteries, has obviously found that crime to be of special concern. Just because death is no longer a possible punishment for the crime described in subsection 794.011(2) does not mean that the alternative penalty suffers from any defect. We therefore approve the district court’s decision.
It is so ordered.
ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur.
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Cited By (43 total)
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Frederick A.R. Heuring v. State, 513 So. 2d 122 (Fla. 1987)…N BUFORD V. STATE, 403 So. 2d 943 (FLA. 1981), MAY THE STATE PROCEED BY INFORMATION INSTEAD OF INDICTMENT? 495 So. 2d at 894. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. A capital felony is one that is punishable by death. Rusaw v. State, 451 So. 2d 469 (Fla.1984). Sexual battery is not punishable by death. Buford. Further, we held in Rowe v. State, 417 So. 2d 981 (Fla.1982), that murder in the first-degree is the only existing capital felony in Florida. We answer the certified question in the affi…
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State v. Hogan, 451 So. 2d 844 (Fla. 1984)…in Buford v. State, 403 So. 2d 943 (Fla. 1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982), ruled that death cannot be imposed for sexual battery of a child, the instant crime is no longer a capital crime. In Rusaw v. State, 451 So. 2d 469 (Fla.1984), we held that the penalty for the crime proscribed by subsection 794.011(2) is still a life sentence without eligibility for parole for twenty-five years, notwithstanding the inapplicability of the death penalty to that crime.* The degree…
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Huffman v. State, 813 So. 2d 10 (Fla. 2000)….2d 982 (1977), in which the United States Supreme Court held that a sentence of death for the crime of rape of an adult woman was grossly disproportionate and excessive punishment forbidden by the Eighth Amendment. Subsequently, in Ru-saw v. State, 451 So. 2d 469, 470 (Fla.1984), this Court held that “a capital crime is one in which the death sentence is possible.” Under this holding, even if a felony is classified in the Florida Statutes as a capital offense, it is not “capital” under case law unless it is…
Previewing 3 of 43 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Buford v. State, 403 So. 2d 943 (Fla. 1981)
- Donaldson v. The Honorable Martin Sack, 265 So. 2d 499 (Fla. 1972)
- Bagstad v. Orange Cnty. Transit Dist., 454 U.S. 1163 (U.S. 1982)
- Johns-Manville Corp. v. White, 454 U.S. 1163 (U.S. 1982)
- January Adams v. State, 56 Fla. 1 (Fla. 1908)
- COX v. State, 427 So. 2d 202 (Fla. 1st DCA 1983)
- Myrick Graham v. State, 429 So. 2d 1378 (Fla. 2d DCA 1983)
- Rusaw v. State, 429 So. 2d 1378 (Fla. 2d DCA 1983)