MAXWELL LEON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Maxwell Leon appealed his convictions for six counts of sexual abuse against a child. The Fifth District Court of Appeal reversed his conviction on count 1 (sexual battery) due to improper jury instructions that allowed conviction based on "union with" rather than penetration as charged, and remanded for resentencing on count 6 where he received both a life sentence and a 25-year mandatory minimum in violation of statutory sentencing limits.
The court held that the jury instruction on count 1 was fundamentally erroneous because it improperly permitted conviction based on "union with" the victim's vagina when the information expressly alleged penetration only, requiring reversal and a new trial on count 1. The court further held that sentencing on count 6 violated Florida law by imposing both a life sentence and a 25-year mandatory minimum, as the sentencing court is authorized to impose only one or the other, requiring remand for resentencing.
[1] A jury instruction for sexual battery that permits conviction based on a finding of "union with" the victim's vagina, when the charging instrument alleges only penetratio…
[2] A defendant convicted of violating section 800.04(5)(b) of the Florida Statutes may be sentenced to either a life sentence or a split sentence incorporating a 25-year ter…
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Join FLexlaw to unlock all legal intelligence“Because the trial court's instruction improperly permitted the jury to convict the defendant of sexual battery based on a finding that his finger was "in union with" the victim's vagina, when the information expressly alleged penetration only, the error was fundamental.”
Establishes the fundamental error regarding the jury instruction on count 1 that deviated from the charges alleged.
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Join FLexlaw to unlock all legal intelligenceMaxwell Leon was convicted on six counts: three counts of sexual battery, one count of sexual activity with a child, and two counts of lewd or lascivi…
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Maxwell, Leon (the defendant) appeals his convictions and sentences for three counts of sexual battery, one count of sexual activity with a child, and two,counts of lewd or lascivious molestation. , We reverse and remand for a new trial as to count 1, and we .remand for resentencing as to count 6. We affirm in.all other respects.
The defendant was convicted on six counts of sexual abuse against a child. Specifically, the defendant was convicted on three counts of sexual battery (counts 1, 2, and 3), one count of sexual activity with a child (count 4), and two counts of lewd or lascivious molestation (counts 5 and 6).
The defendant argues that the trial court committed fundamental error by improperly instructing the jury on count l.1 We agree. - .
*244In count 1, the State charged the defendant with’ sexual battery, asserting that his finger “penetrated” the victim’s vagina. However, during closing argument, the prosecutor addressed count 1 as follows:
It is my burden to prove the crime of sexual battery upon a person less than 12 years of age. I have to prove to you all three elements beyond a reasonable doubt.. [The .victim] was less than 12. years of age — Maxwell Leon committed an act upon [the victim] in which the finger of Maxwell Leon penetrated or had union with the vagina of [the victim]; six years old. ...
Then, when the trial court instructed the jury on count 1,, the trial court stated:
To prove the crime of sexual battery on a person less than 12 years of age as charged in count one, the State must prove the following three elements beyond a reasonable doubt: ' Number one, [the victim] was less than 12 years of age.
Number two, Maxwell Leon committed an act upon [the victim] in which the finger of Maxwell Leon penetrated or had union with the vagina of [the victim].
Because the trial court’s instruction improperly permitted the jury to convict the defendant of -sexual battery based on a finding that his finger , was “in union with” the -victim’s' vagina, when the information expressly alleged penetration only, the error was fundamental. See Lakey v. State, 113 So.3d 90 (Fla, 5th DCA 2013). Accordingly, the defendant’s conviction on count 1 is reversed,' and this matter-is remanded for a new trial thereon: See Gill v. State, 586 So.2d 471 (Fla. 4th DCA 1991).
The defendant also argues that the trial court committed reversible error by imposing sentence on count 6. On count 6, the defendant was convicted of violating section 800.04(5)(b) of the Florida Statutes (2003). For such convictions, the sentencing court is authorized to impose either a life sentence or a split sentence incorporating a term of 25 years’ imprisonment. See § 775.082(3)(a)4.a„ Fla. Stat. (2003); Rochester v. State, 140 So.3d 973 (Fla.2014). Here, the defendant was improperly sentenced to both a life sentence and a 25-year mandatory minimum sentence. The State properly , concedes error on this claim. Accordingly, the sentence on count 6 is reversed and this matter remanded for resentencing thereon.
AFFIRMED in part; REVERSED in part; and REMANDED.
TORPY and EVANDER, JJ., concur.
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Authorities Cited
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013)
- Kemar Rochester v. State, 140 So. 3d 973 (Fla. 2014)
- Ottes Rogers v. State, 586 So. 2d 471 (Fla. 3d DCA 1991)
- Gill v. State, 586 So. 2d 471 (Fla. 4th DCA 1991)