TIMOTHY W. TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Turner appealed his conviction for lewd and lascivious assault under Florida Statute § 800.04, arguing he was charged with a non-existent crime. The court affirmed, holding that the information properly charged an existing crime and was distinguishable from Jozens v. State because the charge included the statutory qualifier 'without committing the crime of sexual battery' and the victim was not under age 12.
The court rejected Turner's argument that he was charged with a non-existent crime. The information properly charged the existing crime of lewd and lascivious assault under § 800.04 with the qualifying phrase 'without committing the crime of sexual battery,' and Turner was properly convicted of only lewd and lascivious assault.
[1] A criminal information charging lewd and lascivious assault without committing sexual battery under section 800.04, Fla. …
[2] A conviction for lewd and lascivious assault is not fatally flawed when the information explicitly states that sexual battery was not committed, and the defendant is not…
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“the state's use of the phrase 'by committing sexual battery upon said child' rendered the entire count fatally flawed”
Explains why Jozens case involved a defective information; Turner's case is distinguishable because his information uses 'without committing sexual battery' instead
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTurner was charged with unlawfully handling, fondling, or assaulting a child under 16 years old in a lewd and lascivious manner by penetrating the vic…
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PER CURIAM.
We reject appellant’s argument that fundamental error occurred in that he was charged with a non-existent crime. The information charged him with the existing crime of unlawfully handling, fondling or assaulting a child under the age of 16 years in a lewd and lascivious manner, by penetrating the victim’s vagina with his finger, without committing the crime of sexual battery, under section 800.04, Fla. Stat. Because of the language used in the information, we find this case distinguishable from Jozens v. State, 649 So. 2d 822 (Fla. 1st DCA 1995), in which the defendant was charged with committing a lewd and lascivious act in the presence of a child under 16 by committing sexual battery, and this court concluded that “the state’s use of the phrase ‘by committing sexual battery upon said child’ rendered the entire count fatally flawed,” thus failing to charge an existing crime. 649 So. 2d at 324. The case is further distinguishable from Jozens in that, in that case, the defendant had been convicted improperly of both sexual battery and lewd and lascivious conduct, since by virtue of the phrase “without committing the crime of sexual battery” in section 800.04, the two offenses are mutually exclusive, see State v. Hightower, 509 So. 2d 1078 (Fla.1987).
Further, in Jozens the court noted that because of the child’s age, “any activity proscribed in section 794.011(l)(h), perpetrated upon a victim of less than twelve years of age necessarily constitutes the crime of sexual battery and by definition cannot be considered lewd and lascivious conduct under section 800.04.” In the present ease, the appellant was convicted only of lewd and lascivious assault, and was not convicted of the crime of sexual battery, and the victim was not under age 12. Appellant was properly charged and convicted of lewd and lascivious assault without committing sexual battery.
AFFIRMED.
JOANOS and WOLF, JJ., and SMITH, LARRY G., Senior Judge, concur.
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