JERRY R. BUDD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerry Budd appeals his conviction for misdemeanor battery, a lesser included offense of sexual battery. The Florida appellate court affirmed the conviction, rejecting multiple challenges to the charging process, jury instructions, and sufficiency of evidence.
The court affirmed the conviction, finding no reversible error on any of defendant's raised points. The information sufficiently alleged the crime despite lacking certain elements, the amendment caused no prejudice, any prosecutorial remarks constituted harmless error, the lesser offense instruction was proper when requested by the defense, and the victim's testimony sufficiently established either touching without consent or intentional bodily harm.
[1] A criminal defendant may be charged by information rather than indictment for a capital crime.
[2] An information is sufficient if it tracks the language of the relevant statute and does not prejudice the defendant.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“when, as here, an instruction as to a lesser offense is requested on behalf of defendant, doubtless as a matter of defense strategy to provide a jury possibly inclined toward a conviction with an opportunity to avoid conviction of the greater crime charged, no reversible error results from a conviction of that offense”
Establishes that requesting a lesser included offense instruction as part of defense strategy does not create reversible error even if the defendant is convicted of that lesser offense.
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with sexual battery but was convicted by a jury of misdemeanor battery as a lesser included offense. The victim testified regard…
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[*53] LEHAN, Judge.
Defendant appeals from his conviction for misdemeanor battery as a lesser included offense of sexual battery with which he was charged. He raises multiple points on appeal. We either disagree with, or find no reversible error in, his points on appeal for the following, paraphrased reasons and, therefore, affirm.
Defendant contends that he should have been charged by indictment, rather than information, for the capital crime of sexual battery. As defendant concedes, this point has been decided contrary to his contention in State v. Wells, 466 So. 2d 291 (Fla. 2d DCA 1985).
Defendant contends that there was error in the failure of the information to allege an essential element of the offense of which he was convicted, to wit, his age, and in its failure to allege the specific acts defendant was accused of. However, the information tracked the language of section 794.011(2), Florida Statutes (1983), and sufficiently alleged the crime so that defendant was not prejudiced. See State v. Dilworth, 397 So. 2d 292 (Fla.1981).
Defendant contends that the trial court erred in allowing the state to amend the information at the conclusion of the state’s case to allege defendant’s age. However, there was no error because defendant has not shown how he was prejudiced by the amendment. See Lackos v. State, 339 So. 2d 217 (Fla.1976).
Defendant contends that the trial court erred in not granting a mistrial due to the prosecutor in closing argument referring to the state’s testimony being unre-futed and saying that “this crime is one that unfortunately seems to be occurring more in our society.” However, remarks of this type which are improper may or may not create reversible error. See State v. Diguilio, No. 65,490 (Fla. Aug. 29, 1985) [10 FLW 430]. Under Diguilio, which involved a remark concerning defendant’s silence, there is harmless error if it is clear beyond reasonable doubt that the jury would have returned a verdict of guilty if the comment had not been made. It appears clear to us beyond a reasonable doubt that the jury in this case would have returned the same verdict even if the foregoing remarks had not been made because they were not sufficiently “direct and egregious.” Id. [10 FLW at 432],
Defendant contends that the trial court erred in instructing the jury on the lesser offense of battery. However, when, as here, an instruction as to a lesser offense is requested on behalf of defendant, doubtless as a matter of defense strategy to provide a jury possibly inclined toward a conviction with an opportunity to avoid conviction of the greater crime charged, no reversible error results from a conviction of that offense. See Ray v. State, 403 So. 2d 956, 961 (Fla.1981).
Defendant contends that the trial court erred in denying defendant’s motion for acquittal because there was insufficient evidence for conviction of misdemeanor battery in that there was no evidence of defendant having touched the victim without her consent which is an element of misdemeanor battery. However, aside from the fact that this conviction constituted a “jury pardon” as had been requested on behalf of defendant in the form of the instruction on this offense, the testimony of the victim could have been construed by the jury to have established touching without her consent or intentionally causing bodily harm to the victim, which is an alternative element of battery.
Affirmed.
GRIMES, A.C.J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (50 total)
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Elvestre Toussaint v. State, 755 So. 2d 170 (Fla. 4th DCA 2000)…he amended information, it cannot be said that the amended complaint changed the “essential elements of the charged offense.” Ingleton v. State, 700 So. 2d 735, 739 (Fla. 5th DCA 1997), rev. denied, 717 So. 2d 532 (Fla.1998). See also Budd v. State, 477 So. 2d 52, 53 (Fla. 2d DCA 1985)(defendant not prejudiced where State was allowed to amend information in a sexual battery case to add defendant’s age). Because the elements were the same, the amended information did not place appellant in double jeopardy. A…
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Henderson Nurse v. State, 658 So. 2d 1074 (Fla. 3d DCA 1995)…the charged offense is, in fact, a lesser included offense. Weller; see Caulder v. State, 500 So. 2d 1362 (Fla. 5th DCA 1986), rev. denied, 511 So. 2d 297 (Fla.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1033, 98 L.Ed.2d 997 (1988); Budd v. State, 477 So. 2d 52 (Fla. 2d DCA 1985); Bufford v. State, 473 So. 2d 795 (Fla. 5th DCA 1985); Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA), approved, 340 So. 2d 928 (Fla.1976). We do, however, agree with the dissent’s alternative argument that the jury, in all li…
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Kirby v. State, 625 So. 2d 51 (Fla. 3d DCA 1993)…ery, which requires an actual touching by the defendant. Even though there is no evidence of guilt of the lesser offense, the jury has the power to grant the defendant a pardon for the more serious offense by conviction of the lesser. Budd v. State, 477 So. 2d 52 (Fla. 2d DCA1985). Thus, the defendant, who did not object to the battery charge being given as a lesser included offense, cannot be heard to complain that the jury exercised this pardon power. Budd, 477 So. 2d at 52; Silvestri v. State, 332 So. 2d…
Previewing 3 of 50 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Lacros v. State, 339 So. 2d 217 (Fla. 1976)
- State v. Dilworth, 397 So. 2d 292 (Fla. 1981)
- State v. Wells, 466 So. 2d 291 (Fla. 2d DCA 1985)