LEE CURTIS DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lee Curtis Davis appeals his convictions for sexual battery with physical force against a twelve-year-old victim, arguing these are not lesser-included offenses of his originally charged crime of sexual battery against a physically helpless victim. The appellate court affirms both the convictions and extended habitual offender sentences.
The court affirmed Davis's convictions, holding that sexual battery with physical force is a proper alternative conviction under the lesser-included offense doctrine, relying on prior precedent in Gould v. State. The court also affirmed the extended sentences, finding that the trial court made specific findings regarding protection of the public and that Davis's atrocious crimes against his wheelchair-bound daughter established necessity for the extended sentences.
[1] Convictions for sexual battery under § 794.011(5), Fla.Stat. …
[2] A prior appellate decision on the same issue adverse to the defendant is binding on subsequent proceedings in the same case.
Previewing 2 of 4 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“Because this court has previously decided the same issue adversely to the defendant, see Gould v. State, 558 So.2d 481 (Fla.2d DCA), cert. accepted, 564 So.2d 487 (Fla.1990), we affirm his convictions for the same reasons as stated in Gould.”
The court's rationale for affirming the lesser-included offense convictions, relying on binding precedent.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavis was originally convicted of sexual battery upon a victim who was physically helpless to resist. This court vacated those convictions, and the tr…
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ALTENBERND, Judge.
The defendant appeals his convictions and sentences for two counts of sexual battery upon a victim twelve years of age or older, with the use of physical force and violence not likely to cause serious personal injury. § 794.011(5), Fla.Stat. (1985).
The trial court convicted him of these offenses on remand after this court had vacated the defendant’s convictions for two counts of sexual battery upon a victim who was “physically helpless” to resist. §§ 794.011(4)(a), .011(l)(e), Fla.Stat. (1985).
See Davis v. State, 538 So. 2d 515 (Fla.2d DCA), review denied, 544 So. 2d 201 (Fla.1989).1 The defendant contends that the trial court erred in convicting him of these offenses because they are not lesser-degree offenses or necessarily lesser-included offenses of sexual battery upon a victim physically helpless to resist. § 924.33, Fla. Stat. (1985).
Because this court has previously decided the same issue adversely to the defendant, see Gould v. State, 558 So. 2d 481 (Fla.2d DCA), cert. accepted, 564 So. 2d 487 (Fla.1990), we affirm his convictions for the same reasons as stated in Gould.
The defendant also contends that the trial court erred in extending his term of imprisonment under the habitual offender statute because the trial judge did not make specific findings of fact regarding the protection of the public. § 775.084(3), Fla.Stat. (1985).
The record, however, establishes that the trial court specifically found that it was necessary to extend the defendant’s sentences for the protection of the public. Its findings are well supported by the testimony at the sentencing hearing and the testimony at trial. At the sentencing hearing, the state presented testimony establishing the defendant’s numerous pri-or felony and misdemeanor convictions. At least one of the felony convictions occurred within five years of the defendant’s commission of his present offense. In this case, the defendant’s atrocious crimes upon his own thirteen-year-old, wheelchair-bound daughter establish by a preponderance of the evidence, and perhaps beyond a reasonable doubt, that his sentences are necessary for the protection of the public.
We affirm the defendant’s extended sentences.
Affirmed.
LEHAN, A.C.J., and PATTERSON, J., concur. . After our decision in Davis, the legislature made it a first-degree felony to commit a sexual battery upon any person who is "physically incapacitated.” § 794.0ll(5)(f), Fla.Stat. (1989) (corresponding to Ch. 89-216, § 1, Laws of Fla.). The legislature also statutorily defined "physically incapacited” to mean “bodily impaired or handicapped and substantially limited in his or her ability to resist or flee an act." § 794.011(l)(j), Fla.Stat. (1989) (corresponding to Ch. 89-216, § 1, Laws of Fla.).
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Davis v. State, 581 So. 2d 586 (Fla. 1991)…McDONALD, Justice. We accepted review of Davis v. State, 567 So. 2d 25 (Fla. 2d DCA 1990), because of asserted conflict with Penny v. State, 140 Fla. 155,191 So. 190 (1939). Davis also conflicts with our decision in Gould v. State, 577 So. 2d 1302 (Fla.1991). We have jurisdiction, article V, section 3(b)(3), Florida Co…
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Soukup v. State, 760 So. 2d 1072 (Fla. 5th DCA 2000)…1995). The fourth element which the state had the burden of proving is the physical incapacitation of the victim. Section 794.011(4)(f), Florida Statutes, was specifically drafted to protect those who are physically handicapped, see Davis v. State, 567 So. 2d 25 n. 1 (Fla. 2d DCA 1990), quashed on other grounds, 581 So. 2d 586 (Fla. 1991), and as such this element has not been proven because there was no evidence indicating she was physically handicapped. The young woman’s drunken state does not rise to the…
Authorities Cited
- Gould v. State, 558 So. 2d 481 (Fla. 2d DCA 1990)
- Driggers v. State, 538 So. 2d 515 (Fla. 4th DCA 1989)