CLARENCE PERCY WEAVER SR.
v.
STATE OF FLORIDA
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Failure to instruct the jury on a lesser included offense is not per se reversible error when there is no error in the jury instruction on the offense of conviction and sufficient evidence supports that conviction.
[1] Following the Florida Supreme Court's decision in Knight v. …
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Join FLexlaw to unlock all legal intelligenceClarence Percy Weaver Sr. was convicted of five counts of sexual battery upon a person less than twelve years of age. He appealed, raising multiple is…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-2199 _____________________________
CLARENCE PERCY WEAVER SR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee. _____________________________
On appeal from the Circuit Court for Nassau County. Robert M. Foster, Judge.
January 23, 2020
M.K. THOMAS, J.
Appellant raises numerous issues on appeal regarding his conviction for five counts of sexual battery upon a person less than twelve years of age. The second and third issues we affirm without comment.* In Appellant’s first issue he claims the trial court committed per se reversible error when it failed to instruct the jury on the lesser included offense of lewd or lascivious battery. However, in Knight v. State, 44 Fla. L. Weekly S310 (Fla. Dec. 19,
* The second and third issues raised on appeal are whether the trial court erred in admitting collateral crime evidence and denying his motion for mistrial due to prosecutor comments in closing argument.
2
2019), the Florida Supreme Court recently receded from prior precedent and now rejects recognition of a fundamental right to jury instructions that facilitate partial jury nullification. Thus, instruction error is no longer considered per se reversible. Rather, where there is no error in the jury instruction on the offense of conviction, and the evidence supports that conviction, the defendant’s judgment must be affirmed. Id. Here, there was no error in the sexual battery jury instruction, and sufficient evidence was presented to support Appellant’s conviction. Accordingly, we AFFIRM appellant’s judgment and sentence. ROWE and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.