RONNIE D. LOWMAN, PETITIONER,
v.
MICHAEL W. MOORE, SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT
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Ronnie Lowman petitioned for habeas corpus based on ineffective assistance of appellate counsel, arguing his conviction for lewd and lascivious assault on a child under 16 was defective because the victim was actually 16 years old at the time of the offense. The court granted relief, vacating the conviction and directing entry of judgment on a lesser included offense.
Lowman's conviction for violation of section 800.04(1) is vacated because the essential element of victim age was not established. The trial court must enter judgment for the lesser included offense of violation of section 800.02 (unnatural and lascivious act, a misdemeanor), and must resentence Lowman accordingly.
[1] A conviction for a crime is fundamentally erroneous when an essential element of the offense has not been proven and could not have been proven.
[2] The failure to raise the issue of an unproven essential element of a crime on direct appeal constitutes ineffective assistance of appellate counsel.
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Join FLexlaw to unlock all legal intelligence“The age of the child is an essential element of the offense.”
Establishes that victim age is a required element of the lewd and lascivious assault charge, so conviction without proof of this element is defective.
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Join FLexlaw to unlock all legal intelligenceLowman was convicted of lewd and lascivious assault on a child under the age of 16, in violation of section 800.04(1), Florida Statutes. Both Lowman a…
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PER CURIAM.
Ronnie Lowman has filed a petition for writ of habeas corpus, which this court treats as a petition alleging ineffective assistance of appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.140(j). Lowman raises a number of issues, only one of which has merit, and upon which we grant relief.
Lowman was convicted of, among other felonies, committing a lewd and lascivious assault on a child under the age of sixteen, a violation of section 800.04(1), Florida Statutes (1995). Lowman asserts, and the State concedes, that the victim was sixteen, rather than under the age of sixteen, when the lewd and lascivious conduct occurred.
The age of the child is an essential element of the offense. See Velazquez v. State, 648 So. 2d 302 (Fla. 5th DCA 1995). Lowman’s conviction on this offense therefore is flawed. Convicting a defendant of a crime when an essential element of the crime has not been proven and could not have been proven is fundamental error. See Garcia v. State, 614 So. 2d 568 (Fla. 2d DCA 1993); Burrell v. State, 601 So. 2d 628 (Fla. 2d DCA 1992). The failure to raise this issue on direct appeal constitutes ineffective assistance of appellate counsel. See Ferrer v. Manning, 682 So. 2d 659 (Fla. 3d DCA 1996). Because the record is clear and the State has conceded the error, this court will not require Lowman to file a new appeal, and grants the appropriate relief with this opinion.
A permissive lesser included offense of section 800.04(1) is commission of an unnatural and lascivious act, a violation of section 800.02, Florida Statutes (1995), a misdemeanor. Age is not an element of this crime. This lesser included offense was included in the jury instructions at Lowman’s trial, without objection, and the evidence established that Lowman committed this offense. Section 924.34, Florida Statutes (1995), requires this court to direct the trial court to enter judgment for the lesser included offense.
Accordingly, Lowman’s conviction for violation of section 800.04(1) is vacated. The trial court is directed to enter judgment against Lowman for violation of section 800.02, and to resentence him for this conviction and for the felony convictions pursuant to the sentencing guidelines.
Petition granted; the trial court is directed to resentence Lowman in accordance with this opinion.
ALTENBERND, A.C.J., and BLUE and CASANUEVA, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cowboy Sherrer v. State, 898 So. 2d 260 (Fla. 1st DCA 2005)…e II without comment. Contrary to the trial court’s ruling, unnatural and lascivious act is a permissive lesser-included offense of lewd and lascivious molestation. See, e.g., Williams v. State, 627 So. 2d 1279 (Fla. 1st DCA 1993); Lowman v. Moore, 744 So. 2d 1210 (Fla. 2d DCA 1999); Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989) (on reh’g); Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses § 800.04 (July J.998). The state claims this authority is no longer applicable, because section 80…
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Wong v. State, 184 So. 3d 1122 (Fla. 2d DCA 2015)…nnatural and lascivious act, section 800.02, Florida Statutes (1999-2010),5 is a category two, permissive lesser included offense of both of the offenses with which Wong was charged. See Fla. Std. Jury Instr. (Crim.), 11.10(b), (c); Lowman v. Moore, 744 So. 2d 1210, 1211 (Fla. 2d DCA 1999) (lewd or lascivious assault); Horn v. State, 120 So. 3d 1, 2 (Fla. 1st DCA 2012) (lewd or lascivious molestation); Sherrer v. State, 898 So. 2d 260, 261 (Fla. 1st DCA 2005) (lewd or lascivious molestation); Williams v. State…
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Cupon v. State, 833 So. 2d 302 (Fla. 1st DCA 2002)…3d DCA 1999). In the case on review, we conclude that appellate counsel’s failure to raise a preserved and meritorious issue [*305] caused the representation to fall outside the range of professionally accepted performance. Compare Lowman v. Moore, 744 So. 2d 1210 (Fla. 2d DCA 1999)(holding failure to raise on direct appeal the issue that an essential element of the offense was not proved constituted ineffective assistance of appellate counsel). Cupón has also sufficiently demonstrated prejudice as a result…
Authorities Cited
- Burrell v. State, 601 So. 2d 628 (Fla. 2d DCA 1992)
- Ferrer v. Manning, 682 So. 2d 659 (Fla. 3d DCA 1996)
- Velazquez v. State, 648 So. 2d 302 (Fla. 5th DCA 1995)
- Gordon v. State, 614 So. 2d 568 (Fla. 4th DCA 1993)
- Garcia v. State, 614 So. 2d 568 (Fla. 2d DCA 1993)