WILLIAM BURNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Burnett appeals his convictions for lewd and lascivious conduct in the presence of a minor under Florida Statutes § 800.04(4). The court reversed two of three convictions, holding that the State failed to produce evidence of lewd or lascivious conduct where the only evidence was that appellant showed adult videos to minors—conduct specifically prohibited under a different, more specific statute (§ 847.0133).
The court reversed the two convictions, holding that the State failed to offer evidence of lewd or lascivious conduct in support of the charges. Because the conduct was specifically prohibited in § 847.0133, the State could not legally convict appellant under § 800.04(4) based solely on that evidence, and the trial court should have granted the motion for judgment of acquittal.
[1] A special statute covering a particular subject matter controls over a general statutory provision covering the same and other subjects in general terms.
[2] Showing adult videos to minors does not, on its own, constitute lewd or lascivious conduct under section 800.04(4), Florida Statutes (1995).
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Join FLexlaw to unlock all legal intelligence“It is a well settled rule of statutory construction ... that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms.”
Establishes the governing principle of statutory interpretation that controls the case—the more specific statute § 847.0133 controls over the general § 800.04(4)
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with two violations of § 800.04(4) for displaying adult videos to two minors and watching the videos with them. At trial, the on…
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PER CURIAM.
Appellant, William Burnett, appeals two of his three convictions for lewd and lascivious conduct in the presence of a minor.1 The State charged appellant, among other things, with two violations of section 800.04(4), Florida Statutes (1995), for displaying adult videos to two minors and watching the videos with them. At the close of evidence, appellant moved for a judgment of acquittal on the grounds that the State had failed to produce any evidence of a lewd or lascivious act. The trial court denied the motion, and the jury returned a verdict of guilty on both charges. We reverse.
“It is a well settled rule of statutory construction ... that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms.” Adams v. Culver, 111 So. 2d 665, 667 (Fla.1959). The only evidence with regard to the charges stated in counts two and three was that appellant had shown two adult videos to minors. Because the charges brought against appellant were specifically prohibited in section 847.0133, Florida Statutes (1995), the State could not legally convict appellant of a violation of section 804.04(4) based on that evidence alone. Id.
Thus, the State failed to offer any evidence of lewd or lascivious conduct in support of these two charges.
The trial court should have granted appellant’s motion for judgment of acquittal. Because the decision should not have reached the jury and because appellant was not charged with a violation of section 847.0133,2 we decline to decide whether appellant violated that statute.
Accordingly, we reverse the convictions as to counts two and three, affirm appellant’s other convictions, and remand for entry of judgments of acquittal on both counts and resentencing.
MINER and WEBSTER, JJ., and SMITH, LARRY G„ Senior Judge, CONCUR. . In addition to the convictions for lewd and lascivious behavior, the jury also found appellant guilty on one count of trespassing, which has not been appealed.
. Appellant was charged with a violation of this statute for a separate incident, and the jury found him not guilty.
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Freeman v. State, 969 So. 2d 473 (Fla. 5th DCA 2007)…” It has been said that this rule ‘is particularly applicable to criminal statutes in which the specific provisions relating to particular subjects carry smaller penalties than the general provision.’ (Citations omitted). See also Burnett v. State, 737 So. 2d 1106, 1107 (Fla. 1st DCA 1998). The State argues that “[t]here first must be a hopeless inconsistency between the two statutes before rules of construction are applied to defeat the express language of one of those statutes.” State v. Parsons, 569 So. 2…
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State v. Maloy, 823 So. 2d 815 (Fla. 1st DCA 2002)…narily gives controlling effect to the particular and specific statutory proscriptions addressing acts which otherwise might also be circumscribed by more general criminal provisions. See Adams v. Culver, 111 So. 2d 665 (Fla.1959); Burnett v. State, 737 So. 2d 1106 (Fla. 1st DCA 1998); see also State v. Croy, 813 So. 2d 993 (Fla. 1st DCA 2002). This also accords with the rule of lenity, which instructs that criminal statutes susceptible of differing constructions are to be interpreted in a manner most favorabl…
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Morris v. State, 789 So. 2d 1032 (Fla. 1st DCA 2001)…that was in fact brought. What was charged here was a violation exclusively of section 800.04(4), Florida Statutes (1997), which we have construed to exclude anything specifically prohibited by some other statutory provision. See Burnett v. State, 737 So. 2d 1106, 1107 (Fla. 1st DCA 1998). Exposing adult genitalia to a child has been held to violate section 800.04(4), Florida Statutes (1997). See Roberts v. State, 620 So. 2d 1082, 1082 (Fla. 2d DCA 1993). Otherwise, the apparent function of former section 80…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kerfert Butler Adams v. Culver, 111 So. 2d 665 (Fla. 1959)