LUIS BORJAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal affirmed sentencing guidelines victim injury points for sexual contact involving fondling of breasts but reversed points for fondling of buttocks, finding that the term 'sexual contact' in the guidelines statute is ambiguous and must be construed favorably to the defendant under the lenity doctrine.
Fondling of breasts constitutes sexual contact and the victim injury points were properly assessed for that offense. However, fondling of buttocks does not constitute sexual contact under the statute, and the victim injury points assessed for that offense must be reversed, as an ordinary person of common intelligence would not understand such contact to fall within the definition of sexual contact.
[1] Victim injury points for sexual contact may be assessed for the intentional fondling of a child victim's breasts.
[2] Victim injury points for sexual contact should not be assessed for the fondling of a child victim's buttocks when the relevant statute does not define sexual contact to i…
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Join FLexlaw to unlock all legal intelligence“Lenity is founded on the due process requirement that criminal statutes must apprise ordinary persons of common intelligence as to what is prohibited.”
Establishes the constitutional foundation for the lenity doctrine requiring fair notice in criminal statutes
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Join FLexlaw to unlock all legal intelligenceLuis Borjas was convicted of sexual offenses involving a child victim. Count I charged sexual contact involving intentional fondling of the victim's b…
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KLEIN, J.
We affirm the trial court’s assessment of victim injury points on appellant’s sentencing guidelines scoresheet for sexual contact which involved the intentional fondling of the child victim’s breasts which were charged in count I. We reverse the victim injury points assessed for fondling her buttocks which were separately charged in count II, and certify direct conflict with Seagrave v. State, 768 So. 2d 1121 (Fla. 1st DCA 2000), in which the first district held that sexual contact included fondling buttocks.
Guideline sentencing points for victim injury are assessed for offenses “involving sexual contact that does not include sexual penetration.”- § 921.0011(7)(b)2, Florida Statutes (1995). Sexual contact is not defined in the statute.
In Kitts v. State, 766 So. 2d 1067 (Fla. 5th DCA 2000), the fifth district, en banc, held that the fondling of breasts would constitute “sexual contact. In doing so, it relied on definitions of sexual abuse of children contained in Chapter 39, and sexual misconduct contained in Chapter 985. It also relied on cases from other jurisdictions, although it appears that in most of those cases the statute being applied contained the definition which included breasts. Judge Peterson dissented in Kitts because of our lenity statute, which requires that language in a penal statute susceptible of different constructions be construed most favorably to the accused. § 775.021(1).
Lenity is founded on the due process requirement that criminal statutes must apprise ordinary persons of common intelligence as to what is prohibited. Perkins v. State, 576 So. 2d 1310, 1312-13 (Fla. 1991). Lenity applies “not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose.” Carawan v. State, 515 So. 2d 161, 165 (Fla.1987), quoting Albernaz v. United States, 450 U.S. 333, 342, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981).
Although we agree with Kitts that fondling breasts can constitute sexual contact, we do so because an ordinary person of common intelligence would know that the fondling of the female victim’s breasts in this case would constitute sexual contact. We do not, however, agree that an ordinary person of common intelligence would understand that fondling buttocks is sexual contact where there is no definition of sexual contact in the statute. Construing the statute most favorably to the accused, as lenity requires, we reverse the victim injury points assessed for fondling the victim’s buttocks.
WARNER, C.J., concurs.
STEVENSON, J., dissents with opinion.
STEVENSON, J.,
dissenting.
I agree completely with Judge Peterson’s dissent in Kitts v. State, 766 So. 2d 1067 (Fla. 5th DCA 2000)(on reh’g en banc), and would reverse all of the victim injury points at issue in this case. As Judge Peterson remarked in Kitts:
[Since] the legislature has not expressly defined the phrase [sexual contact], any uncertainty resulting from the legislature’s vagueness should accrue to the benefit of the defendant, not the state. § 775.021(1), Fla. Stat. (1999) (“When ... language is susceptible of differing constructions, it shall be construed most favorably to the accused.”); Scates v. State, 603 So. 2d 504 (Fla.1992); Hollingsworth v. State, 632 So. 2d 176 (Fla. 5th DCA 1994).
We must await future cases in order to determine how far the majority will go in expanding its definition of sexual contact to other parts of the body.
766 So. 2d at 1069-70.
Accordingly, I dissent from the majority decision.
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Seagrave v. State, 802 So. 2d 281 (Fla. 2001)…ther "sexual contact” is limited to sexual union in order to allow the assessment of victim injury points. For this reason, we have rephrased the certified question. We recognize, however, that the Fourth District Court of Appeal in Borjas v. State, 790 So. 2d 1114 (Fla. 4th DCA 2001), recently certified conflict with Seagrave with regards to whether "sexual contact” included the fondling of a victim’s buttocks. . Section 800.04 provides: A person who: (1) Handles, fondles, or assaults any child under the a…
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Knarich v. State, 866 So. 2d 165 (Fla. 2d DCA 2004)…(b), Florida Statutes (1997), provides for victim injury points to be scored for “sexual contact that does not include sexual penetration,” but the statute does not define sexual contact. To support his argument, Knarich relies upon Borjas v. State, 790 So. 2d 1114 (Fla. 4th DCA 2001), and Clark v. State, 808 So. 2d 231 (Fla. 4th DCA 2001), in which the Fourth District held that fondling a person’s buttocks does not constitute sexual contact for purposes of scoring victim injury points. In both cases the Fourt…
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McGHEE v. State, 847 So. 2d 498 (Fla. 4th DCA 2003)…ory interpretation is tempered by due process concerns. See Perkins v. State, 576 So. 2d 1310 (Fla.1991). A criminal statute must apprise an ordinary person of common intelligence of both the prohibited acts and their penalties. See Borjas v. State, 790 So. 2d 1114, 1115 (Fla. 4th DCA 2001). This lenity principle, codified at section 775.021(l)-(2), Florida Statutes (1997), requires criminal statutes, including penal statutes, to be strictly construed in the accused’s favor. See State v. Byars, 823 So. 2d 740,…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Albernaz v. United States, 450 U.S. 333 (U.S. 1981)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- Carrick A. Scates v. State, 603 So. 2d 504 (Fla. 1992)
- Hollingsworth v. State, 632 So. 2d 176 (Fla. 5th DCA 1994)
- Kitts v. State, 766 So. 2d 1067 (Fla. 5th DCA 2000)
- Seagrave v. State, 768 So. 2d 1121 (Fla. 1st DCA 2000)