LAMAR LEON FURLOW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lamar Leon Furlow was convicted of lewd, lascivious, or indecent assault on a child under Florida Statute 800.04(2) and two counts of simple assault. The appellate court affirmed the assault convictions but reversed the 800.04(2) conviction because the state failed to prove penetration, an essential element of the crime.
Penetration is an essential element of a violation of Section 800.04(2). Because the record failed to establish penetration and the trial court erroneously believed penetration was not necessary, the conviction on count I must be reversed. The assault convictions under counts II and III are affirmed.
[1] A conviction for lewd, lascivious, or indecent assault or act upon or in the presence of a child under Section 800.04(2), Florida Statutes, requires proof of an act defin…
[2] Sexual battery, as defined in Section 794.011(l)(h), Florida Statutes, includes oral, anal, or vaginal penetration by, or union with, the sexual organ of another, or anal…
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Join FLexlaw to unlock all legal intelligence“The act defined as sexual battery under Section 794.011(l)(h), Florida Statutes, is therefore an essential element of a violation of Section 800.04(2).”
Establishes that sexual battery as statutorily defined is a required element of the 800.04(2) offense
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Join FLexlaw to unlock all legal intelligenceFurlow was charged with violating Section 800.04(2) by committing an act defined as sexual battery upon a child under 16 years of age. The alleged cri…
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NIMMONS, Judge.
Furlow was convicted of a violation of Section 800.04(2), Florida Statutes, as charged in count I and two counts of simple assault (lesser included offenses of the offenses charged in counts II and III). We affirm the assault judgments and sentences under counts II and III, but reverse the 800.04(2) conviction.
Section 800.04(2) provides: 800.04 Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery. — Any person who:
* * * * *
(2) Commits an act defined as sexual battery under s. 794.011(l)(h) upon any child under the age of 16 years; or * * * ♦ * *
without committing the crime of sexual battery is guilty of a felony of the second degree....
The act defined as sexual battery under Section 794.011(l)(h), Florida Statutes, is therefore an essential element of a violation of Section 800.04(2). The phrase “sexual battery” is defined as follows:
The term “sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.
Section 794.011(l)(h).
The crime in count I was alleged to have been committed by use of the defendant’s finger as opposed to his sexual organ. Under the above definition, mere “union with” the victim’s vagina is insufficient because an object other than the defendant’s organ was used. See State v. Allen, 519 So. 2d 1076 (Fla. 1st DCA 1988). The state was therefore required to prove that the defendant penetrated the victim’s vagina with his finger. The record in this case obviously fails to establish the key element of penetration. The trial court, therefore, erred in denying the defendant’s motion for judgment of acquittal as to count I. The trial court was apparently under the erroneous impression that penetration was not necessary. At the conclusion of the attorneys’ arguments on the motion for judgment of acquittal, the trial judge, in announcing his ruling, observed:
Union with is such [sic] it doesn’t have to be any penetration, or otherwise there would be no point in having the words, “penetration by or union with the sexual organ of another.” So penetration is not necessary.
Appellant is therefore entitled to reversal as to the conviction on the count I offense.1
We have considered and hereby reject appellant’s attack on the assault judgments under counts II and III and affirm the same. The remaining issues, which pertain to count I, are moot in view of our reversal as to that count.
Judgments and sentences affirmed as to counts II and III; judgment and sentence as to count I vacated and set aside; and cause remanded for the entry of an order discharging the defendant from the offense charged in count I. a ERVIN and JOANOS, JJ., concur. . We are at a loss to understand why the defendant was charged with a violation of Section 800.04(2) instead of lewd assault (or fondling) under Section 800.04(1), the latter not requiring penetration, and both offenses being second degree felonies.
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Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989)…r the age of 16 years; ... without commit [*586] ting the crime of sexual battery” would not be violated by finger penetration of the labia without vaginal penetration because such act is not statutorily defined as a sexual battery. Furlow v. State, 529 So. 2d 804, 805 (Fla. 1st DCA 1988). . Although the crime of unnatural and lascivious act is a lesser included offense of the crime of lewd, lascivious, or indecent assault upon a child, the latter crime is not a lesser included offense of the crime of sexual…
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Wallis v. State, 548 So. 2d 808 (Fla. 5th DCA 1989)…ration by the sexual organ of another; second [*810] ly, oral or vaginal penetration of another by any other object; thirdly, ... oral, anal or vaginal union with the sexual organ of another, (emphasis in original). Id. at 358. In Furlow v. State, 529 So. 2d 804 (Fla. 1st DCA 1988), the court, citing the definition of “sexual battery” under section 744.-011(l)(h), Florida Statutes, opined: Under the above definition, mere “union with” the victim’s vagina is insufficient because an object other than the def…
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Davis v. State, 569 So. 2d 1317 (Fla. 1st DCA 1990)…ion with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, a sexual battery does not include an act done for a bona fide medical purpose. § 794.011(l)(h), Fla.Stat. (1989). In Furlow v. State, 529 So. 2d 804 (Fla. 1st DCA 1988), the appellant had been convicted of a violation of section 794.011, Florida Statutes. The question on appeal to this court was whether the state had established the key element of penetration in the case of sexual battery upon a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Allen, 519 So. 2d 1076 (Fla. 1st DCA 1988)