RALPH M. WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ralph Wilson was convicted of lewd and lascivious conduct with a child under 14 years old. The appellate court affirmed the conviction but reversed the sentence, holding that mandatory psychiatric examinations under Chapter 801 of the Florida Statutes were required before sentencing could be imposed.
The evidence was sufficient to sustain the conviction, and the jury's verdict will not be disturbed on appeal. However, the sentencing was improper because the trial judge failed to comply with the mandatory requirement to appoint psychiatrists to examine the defendant before proceeding with sentencing under Chapter 801.
[1] A jury's verdict will not be disturbed on appeal when the victim's testimony, though uncorroborated and denied by the defendant, convincingly supports the verdict.
[2] Sentencing under Florida Statute § 801.041 requires strict compliance with the mandatory procedural requirements of Florida Statute § 801.051, including the appointment a…
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Join FLexlaw to unlock all legal intelligence“The record reveals that the child was 9 years old and testified very clearly and explicitly as to the acts performed by the appellant... since it rather convincingly supports the verdict of the jury, it will not be disturbed by an appellate court.”
Establishes the appellate court's standard for reviewing jury verdicts based on credibility of evidence
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Join FLexlaw to unlock all legal intelligenceWilson was charged and convicted by jury of violating Florida Statute § 800.04 by fondling a 9-year-old female child in a lewd, lascivious, and indece…
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Appellant Ralph M. Wilson was charged and convicted by jury of violation of Florida Statute § 800.04, F.S.A. in that he fondled a female child under the age of 14 years in a lewd, lascivious and indecent manner without intention to commit rape.
He now urges that the evidence was insufficient to sustain the jury’s verdict and that his motion for acquittal should have been granted. We disagree. The record reveals that the child was 9 years old and testified very clearly and explicitly as to the acts performed by the appellant. It is true there were no corroborating witnesses and the appellant testified in his own behalf, denying all the acts. The jury, however, believed the story as told by the child and since it rather convincingly supports the verdict of the jury, it will not be disturbed by an appellate court.
We are, however, concerned with the sentencing. Florida Statute § 801.041, F. S.A., provides that one convicted under Florida Statute § 800.04, F.S.A., is punishable pursuant to Chapter 801 of the Florida Statutes and, although this was intended in this case, the provisions of Chapter 801 have not been sufficiently complied with. Florida Statute § 801.051, F.S.A., provides as follows:
“When a person has been convicted of an offense within the meaning of this chapter the trial judge shall then appoint not less than two (2) nor more than three (3) qualified psychiatrists who are licensed physicians in the state and who have directed their professional practice primarily to the diagnosis and treatment of mental and nervous disorders for a period of not less than five (5) years, to make a personal examination of the person so convicted. The court shall not proceed under the provisions of this chapter until each psychiatrist so appointed shall have filed a separate written report of the result of his examination.”
*668We believe the language contained in the statute is mandatory. It is clear and unequivocal as to what a trial judge shall do prior to proceeding with sentencing.
It is entirely possible that appellant will not be found to be mentally ill and if that be the case this court is without power to change the sentence.
The legislature obviously recognized when it revised Section 801 that one found guilty of molesting children is in all likelihood mentally ill and should be afforded proper medical attention. The statute looks toward rehabilitation as well as punishment. It is for this reason as well as the clear language of the statute that shall not is mandatory and Chapter 801 must be followed and the offender should not be sentenced until Chapter 801 has been complied with.
Affirmed in part and reversed in part.
McNULTY and BOARDMAN JJ. concur.
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Johnson v. State, 292 So. 2d 426 (Fla. 2d DCA 1974)…en a sexual act is completed or attempted), and assault and battery (when a sexual act is completed or attempted), when such acts are committed against, to, with or in the presence of, a person fourteen years of age or under.” . (Fla.App.2d, 1973), 282 So. 2d 667. . (Fla.App.2d, 1973), 282 So. 2d 668. . F.S. section 801.091, F.S.A.1971. . (Fla.App.2d, 1974), 291 So. 2d 118 (Opinion filed March 1, 1974).…
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Wolf v. State, 282 So. 2d 668 (Fla. 2d DCA 1973)…ntly, in view of the plain, clear language of Section 801.051, supra, the trial court had no alternative but to strictly follow the requirements set forth therein before imposing sentence upon the appellant. See, also, Wilson v. State, Fla.App.1973, 282 So. 2d 667 (Opinion filed September 14, 1973, Second District Court of Appeal). We have carefully reviewed the other points presented by appellant and find them to be without merit. For the reasons stated herein we remand the case to the trial court for furt…
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Smolen v. State, 468 So. 2d 518 (Fla. 1st DCA 1985)…chief witness for the state was not credible. We have determined that the evidence presented constituted a prima facie case but cannot pass upon the credibility of the state’s chief witness as that was the province of the jury. See: Wilson v. State, 282 So. 2d 667 (Fla. 2d DCA 1973). As third point, appellant alleges the prosecutor made improper and prejudicial statements to the jury. A careful reading of the trial transcript demonstrates that the prosecutor’s statements were well within the latitude permitt…
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