LARRY BERNARD ROBINSON
v.
STATE OF FLORIDA
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The appellate court affirmed convictions for sexual battery and lewd molestation but reversed and remanded for resentencing due to erroneous felony classifications and excessive sentences. The court found that while jury instructions on lesser offenses were not fundamental error, the sentencing classifications and lengths were incorrect based on the statutes in effect at the time of the offenses.
The court held that any error in the jury instructions for lesser included offenses was not fundamental and was invited. However, the court agreed that the felony classifications and sentences for counts 2 and 4 were erroneous and vacated those sentences, remanding for correction and resentencing.
[1] A defendant must be sentenced in accordance with the statutory law in effect at the time the offense was committed, not under subsequently enacted amendments to the statu…
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Join FLexlaw to unlock all legal intelligence“While he challenges the convictions for counts 2 and 3, we affirm as any error in instructing the jury on the lesser offenses was not fundamental.”
Establishes the court's decision regarding the jury instructions for lesser included offenses.
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Join FLexlaw to unlock all legal intelligenceLarry Robinson was convicted by a jury of multiple offenses, including sexual battery on a child and lewd molestation. He appealed, arguing errors in …
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BILBREY, J.
Larry B. Robinson was convicted of multiple offenses after a jury trial. Included among those offenses were sexual battery on a child over twelve years of age by a defendant eighteen years of age or older (a lesser offense of count2 of the amended information), lewd and lascivious molestation of a child less than 12 years of age (a lesser offense of count 3 of the amended information), and sexual battery by a person in familial or custodial authority (count 4 of the amended information). While he challenges the convictions for counts2 and 3, we affirm as any error in instructing the jury on the lesser offenses was not fundamental. See Washington v. State, 328 So. 3d 364, 368 (Fla. 1st DCA 2021) (citing Nesbitt v. State, 889 So. 2d 801, 803 (Fla. 2004)) (explaining it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had a chance to object and failed to do so when the improperly charged offense is lesser in degree and penalty than the main offense or defense counsel requested the improper charge or relied on the charge). Furthermore, any error in the jury instruction on the lesser included charges was invited. See Morris v. State, 658 So. 2d 155, 156 (Fla. 1st DCA 1995); see also Delvalle v. State, 653 So. 2d 1078, 1079 (Fla. 5th DCA 1995). However, the judgment of conviction did erroneously classify count2 as a first degree felony and count 4 as a first degree felony punishable by life. The State concedes error, and we accept the concession. Under the statutory law in effect during the time count2 was committed, sexual battery on a child over twelve years of age by a defendant eighteen years of age or older without physical force or violence likely to cause serious personal injury was a second degree felony. See § 794.011(5), Fla. Stat. (2011). Thus, the classification of count2 as a first degree felony was error.1
Moreover, the thirty-year sentence imposed for count2 exceeds the statutory maximum of fifteen years’ imprisonment for a second degree felony. See § 775.082(3)(c), Fla. Stat. (2011). It is well-established that a defendant is to be sentenced in accordance with the statutory law in effect at the time the offense was committed. See Washington, 328 So. 3d at 367; Leftwich v. Dep’t
of Corr., 148 So. 3d 79, 83 (Fla. 2014). As a result, while we affirm the conviction, we vacate the thirty-year sentence for count2, and remand for correction of the judgment and for resentencing.
Similarly, the conviction for count 4 (sexual battery on a child between twelve and eighteen years of age by a person in familial or custodial authority) was erroneously classified on the judgment as a first degree felony punishable by life. At the time of the commission of the offense, section 794.011(8)(b) was a first degree felony, not a first degree felony punishable by life.2
MAKAR and KELSEY, JJ., concur. _____________________________
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Robinson v. State, 328 So. 3d 364 (Fla. 1st DCA 2022)…on in familial or custodial authority (count 4 of the amended information). While he challenges the convictions for counts 2 and 3, we affirm as any error in instructing the jury on the lesser offenses was not fundamental. See Washington v. State, 328 So. 3d 364, 368 (Fla. 1st DCA 2021) (citing Nesbitt v. State, 889 So. 2d 801, 803 (Fla. 2004)) (explaining it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had a chance to object and failed to do so when the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nesbitt v. State, 889 So. 2d 801 (Fla. 2004)
- Leftwich v. Fla. Dep't OF Corr., 148 So. 3d 79 (Fla. 2014)
- Robinson v. State, 328 So. 3d 364 (Fla. 1st DCA 2022)