DAVID HOLMES, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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David Holmes petitioned for relief based on ineffective assistance of appellate counsel. The court granted his petition in part, finding that his appellate counsel failed to raise a fundamental error claim regarding an erroneous jury instruction on attempted capital sexual battery that, when combined with misleading prosecutorial argument, constituted reversible error.
The court granted the petition in part, holding that the trial court's erroneous jury instruction constituted fundamental error when viewed in context with the prosecutor's closing argument, and that appellate counsel was ineffective in failing to raise this claim on appeal. The court vacated the conviction on one count and remanded for a new trial.
[1] A jury instruction that defines attempted sexual battery as an attempted union with the vagina, rather than penetration, constitutes fundamental error.
[2] Ineffective assistance of appellate counsel is established when counsel fails to raise a claim of fundamental error that would have resulted in reversal.
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“a defendant's finger is an 'other object,' which must penetrate and not merely have union with the relevant part.”
Establishes the legal standard that penetration, not union, is required for sexual battery when a finger is involved
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Join FLexlaw to unlock all legal intelligenceHolmes was convicted after jury trial of two counts of attempted sexual battery upon a child less than twelve years of age and one count of committing…
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COVINGTON, Judge.
David Holmes, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises several grounds alleging ineffective assistance of appellate counsel. We deny without discussion all of the grounds but one. On the remaining ground, because it is clear that the trial court’s erroneous jury instruction, when viewed in context with the prosecutor’s closing argument, constituted fundamental error that would have required reversal had it been raised as an issue on appeal,1 we vacate the judgment and sentence on one of the offenses of which Holmes was convicted, and we remand for a new trial on that count. See Johnson v. Wainwright, 498 So. 2d 938 (Fla.1986) (vacating petitioner’s convictions and sentences and remanding for new trial and holding that, where petitioner demonstrated appellate counsel’s ineffectiveness in failing to raise claim of reversible error, granting petitioner new appeal would be redundant).
Holmes was convicted after jury trial of two counts of attempted sexual battery upon a child less than twelve years of age and one count of committing a lewd and lascivious act in the presence of a child less than sixteen years of age. In one of the attempted capital sexual battery counts, the State alleged in the information that Holmes “did unlawfully attempt to commit a sexual battery upon D.H .... by attempting to penetrate the vagina of D.H. with his hand and/or finger.” Holmes argues that the trial court committed fundamental error in instructing the jury that he could be found guilty of attempted capital sexual battery if the State proved that Holmes committed an “act upon D.H. in which the hand/or finger of DAVID W. HOLMES attempted to penetrate or attempted to have union2 with the vagina of D.H.” (Emphasis added.) Holmes further argues that appellate counsel was ineffective in failing to raise this issue on appeal.
We agree.
Sexual battery is defined as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 794.011(1)(h), Fla. Stat. (1995). “[A] defendant’s finger is an 'other object,’ which must penetrate and not merely have union with the relevant part.” Richards v. State, 738 So. 2d 415, 418 (Fla. 2d DCA 1999).
In the present case, the above instruction was completely erroneous since attempted union of the finger or hand with the vagina does not constitute the crime of attempted capital sexual battery. In Palazzolo v. State, 754 So. 2d 731, 737 (Fla. 2d DCA 2000), the trial court instructed the jury that “capital sexual battery was proven if the State established that ‘the finger of the defendant penetrated or had union with the vagina of the victim.’ ” The doctor’s trial testimony confused the concepts of penetration and union, and the prosecutor “stated that Mr. Palazzolo would be guilty of sexual battery if his finger ‘penetrated or had union with the vagina of [C.G.].’ ” Id. (brackets in original).
The Palazzolo court held that “there was fundamental error in this case where the instruction itself was erroneous and where there were misleading comments made during the trial.” Id. In the present case, the prosecutor, in closing argument, stated that Holmes “committed an act upon [D.H.] in which the hand or finger of David Holmes attempted to penetrate or have union with — which means contact — the vagina.” Thus, the erroneous jury instruction, combined with the misleading argument, constitutes fundamental error. The per cu-riam affirmed opinion in the present case was issued almost one and one-half years after the issuance of the Palazzolo opinion. If counsel had argued this issue on appeal, we would have reversed and remanded for a new trial on this count.
Accordingly, we grant this portion of Holmes’ petition, and we vacate his conviction on count one of the information and remand for a new trial on that count only.
Petition granted in part and denied in part.
CASANUEVA and STRINGER, JJ., Concur. . In Reed v. State, 837 So. 2d 366 (Fla.2002), the supreme court held that fundamental error is always harmful.
. The jury was instructed that union means contact.
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Citator
Cited By
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Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013)…(8)(b), Fla. Stat. (2008); Fla. Std. Jury Instr. (Crim.) 11.6. A defendant’s finger is considered an “object” within the meaning of the statute, and therefore “must penetrate and not merely have union with the relevant [body] part.” Holmes v. State, 842 So. 2d 187, 188 (Fla. 2d DCA 2003) (quotation omitted). In this case, the trial court instructed the jury as follows: “To prove the crime of Attempted Sexual [Battery on] a Child, the State must prove ... Chad La-key attempted to penetrate or have union with…
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Rodriguez v. State, 172 So. 3d 540 (Fla. 5th DCA 2015)…he potentially erroneous jury instruction must be examined in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case.” (citing Abbott v. State, 958 So. 2d 1140, 1142 (Fla. 4th DCA 2007))); Holmes v. State, 842 So. 2d 187, 187 (Fla. 2d DCA 2003) (stating that true impact of court’s erroneous jury instruction should be considered in light of prosecutor’s closing argument); Harvey v. State, 448 So. 2d 578, 581 (Fla. 5th DCA 1984). In its brief, the State argues that a…
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Othlone Russ v. State, 971 So. 2d 851 (Fla. 3d DCA 2007)…se the claim was not preserved in the trial court, the mistaken instruction could not have been meaningfully presented on appeal unless it was deemed fundamentally erroneous, as indeed Gill also held. Gill, 586 So. 2d at 472; accord Holmes v. State, 842 So. 2d 187 (Fla. 2d DCA 2003); Palazzolo v. State, 754 So. 2d 731 (Fla. 2d DCA 2000). That holding in Gill, however, was based on the fact that the prosecutor in final argument affirmatively suggested that union alone was sufficient to convict. Nothing of the…
Authorities Cited
- Reed v. State, 837 So. 2d 366 (Fla. 2002)
- Johnson v. Louie L. Wainwright, 498 So. 2d 938 (Fla. 1986)
- Richards v. State, 738 So. 2d 415 (Fla. 2d DCA 1999)
- Palazzolo v. State, 754 So. 2d 731 (Fla. 2d DCA 2000)