STANLEY EDWARD DIGGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stanley Diggs appealed his conviction for sexual battery, challenging the trial court's instruction on a lesser-included offense and the sentence imposed. The appellate court affirmed the conviction but vacated and remanded the sentence because the trial court relied on improper aggravating factors, including past uncharged conduct and generic victim trauma that is inherent to sexual battery offenses.
The trial court did not err in instructing the jury on the lesser-included offense because both the state and defendant are entitled to all applicable jury instructions and instructing on the law is the court's sole province. However, the sentencing departure was improper because it relied on the defendant's past uncharged conduct and on generic psychological injury inherent to sexual battery itself.
[1] A trial court may instruct the jury on a necessarily lesser included offense, even over the defendant's objection, if there is evidence to support such an instruction.
[2] The state, as well as the defendant, is entitled to all applicable jury instructions.
Previewing 2 of 5 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“The state, like the defendant, is entitled to all applicable jury instructions. It is the court's sole province to instruct the jury on the law.”
Establishes the authority and responsibility of the trial court to instruct the jury on all applicable law, including lesser-included offenses, regardless of a defendant's objection.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDiggs was charged with sexual battery with force likely to cause serious injury under Florida Statutes section 794.011(3). Evidence showed the victim …
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DAUKSCH, Judge.
This is an appeal from a conviction and sentence for sexual battery. As to the conviction appellant says it was error for the court to have instructed the jury regarding a necessarily lesser included offense because he had requested that that instruction not be given. Appellant was charged with sexual battery with force likely to cause serious injury in violation of section 794.011(3), Florida Statutes (1985). He was convicted of the lesser sexual battery without force likely to cause serious injury in violation of section 794.011(5), Florida Statutes (1985). Since there was evidence the victim was injured and the jury could have found the force was not likely to cause serious injury, we conclude that the court did not err in giving the instruction, even over appellant’s objection. The state, like the defendant, is entitled to all applicable jury instructions. It is the court’s sole province to instruct the jury on the law. Stark v. Smith, 310 So. 2d 334 (Fla.3d DCA 1975).
As to the sentence, the court departed from the recommended guideline sentence because:
The victim presently lives in fear because of the defendant’s threats to do her bodily harm. His past history demonstrates his ability of carrying out the threats.
The second sentence is clearly an improper reason because it violates Rule 3.701(d)(ll), which disallows using past conduct for which no conviction was ob tained. Pursell v. State, 483 So. 2d 94 (Fla.2d DCA 1986); Fowler v. State, 482 So. 2d 602 (Fla.5th DCA 1986).
Although psychological damage may be an aggravating factor for which a departure can be sustained, such is not the case here. The trauma suffered by a crime victim must be different from that suffered in instances involving the same crime. Tompkins v. State, 483 So. 2d 115 (Fla.2d DCA 1986). Sexual battery necessarily includes threats, psychological injury, fear and the like, so these factors should not be used to depart from the guidelines. Of course, if the psychological injury is severe due to extraordinary circumstances then a departure may be warranted. Tompkins; Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984). Such is not the case here. Parenthetically, we note the judge considered, as evidence of the victim’s continuing fears, a letter from the victim. In this particular instance we question the court’s use of that letter for departure purposes where the appellant had no right of confrontation and cross-examination regarding the contents of the letter. CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED FOR RESENTENCING.
COWART, J., and CAMPBELL, M., Associate Judge, concur.
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Bozeman v. State, 931 So. 2d 1006 (Fla. 4th DCA 2006)…y v. State, 82 Fla. 108, 89 So. 359, 359 (1921) (“Charges of the court must be based upon facts in proof, and if not so based upon the facts in proof it is error to give them; and the court below erred in giving the quoted charge.”); Diggs v. State, 489 So. 2d 1228, 1228 (Fla. 5th DCA 1986) (like defendant, state “is entitled to all applicable jury instructions”); Griffin v. State, 370 So. 2d 860, 861 (Fla. 1st DCA 1979) (“the giving of this charge absent appropriate factual basis in the record is reversible e…
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Carter v. State, 115 So. 3d 1031 (Fla. 4th DCA 2013)…. State, 636 So. 2d 869, 871 (Fla. 4th DCA 1994); Cooper v. State, 573 So. 2d 74, 76 (Fla. 4th DCA 1990). Moreover, “[t]he state, like the defendant, is entitled to all applicable jury instructions” supporting its theory of the case. Diggs v. State, 489 So. 2d 1228, 1228 (Fla. 5th DCA 1986). Id. at 1045-46. We find no error in the trial court instructing the jury on the justifiable use of deadly force. Improper Rebuttal Evidence During cross-examination, Carter stated that the testimony of the State’s witn…
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Marshall v. State, 747 So. 2d 1045 (Fla. 4th DCA 2000)…. State, 636 So. 2d 869, 871 (Fla. 4th DCA 1994); Cooper v. State, 573 So. 2d 74, 76 (Fla. 4th DCA 1990). Moreover, “[t]he state, like the defendant, is entitled to all applicable jury instructions” supporting its theory of the case. Diggs v. State, 489 So. 2d 1228, 1228 (Fla. 5th DCA 1986). Affirmed. DELL and GUNTHER, JJ., concur.…
Authorities Cited
- Davis v. State, 458 So. 2d 42 (Fla. 4th DCA 1984)
- Tompkins v. State, 483 So. 2d 115 (Fla. 2d DCA 1986)
- Pursell v. State, 483 So. 2d 94 (Fla. 2d DCA 1986)
- Hardage v. State OF Ga., 482 So. 2d 602 (Fla. 1st DCA 1986)
- Fowler v. State, 482 So. 2d 602 (Fla. 5th DCA 1986)
- Stark v. Smith, 310 So. 2d 334 (Fla. 3d DCA 1975)