JACOB M. MCCLANAHAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McClanahan was convicted of involuntary sexual battery with a jury verdict finding no weapon was used, yet the trial court sentenced him to 15 years, the maximum penalty applicable only to charges involving weapons. The appellate court held the verdict necessarily reflected conviction of the lesser included offense of sexual battery by threat of force, and affirmed the sentence while remanding for corrected adjudication language.
The conviction is valid as a conviction for the lesser included offense of sexual battery by threat of force likely to cause serious personal injury, which is properly included within the original charge. The sentence of 15 years is affirmed, but the case is remanded for correction of the judgment form to reflect adjudication for the lesser included offense rather than the charge as stated.
[1] A jury's verdict form, when ambiguous, may be interpreted by the court to determine the intended offense, especially when supported by evidence and jury instructions.
[2] A conviction for a lesser included offense is permissible when the elements of the lesser offense are contained within the elements of the charged offense.
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 charge of sexual battery by threatening to use a deadly weapon would include as a lesser offense in this case sexual battery by threatening to use force likely to cause serious personal injury.”
Establishes the legal basis for the conviction of a lesser included offense within the original charge.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcClanahan was charged with involuntary sexual battery effected by threats with a deadly weapon under Florida Statute 794.011(2). The jury was given a…
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STARNES, HUGH E., Associate Judge.
The defendant was charged with involuntary sexual battery effected by threats with a deadly weapon pursuant to Florida Statute 794.011(2). The jury was furnished a verdict form of “guilty of involuntary sexual battery as charged” with the option of choosing one of the following alternatives:
“and we further find that a weapon was used”, or
“and we further find that a weapon was not used”.
The jury returned a verdict choosing the second alternative. At sentencing the trial court announced that the maximum possible sentence on the charge was fifteen years and sentenced defendant to that term of years.
Defendant has appealed the adjudication and sentence maintaining that the adjudication must have been under F.S. 794.011(5), since that is the only involuntary sexual battery charge carrying a maximum penalty of fifteen years in prison. That section includes as an element the use of force not likely to cause serious personal injury. With this conclusion as a premise, the defendant then argues that the adjudication would be invalid under the rationale of Hicks v. State, 362 So. 2d 730 (Fla.3rd DCA 1978), which held that a defendant charged with sexual battery by force likely to cause serious personal injury could not be convicted of sexual battery by use of threat because that would constitute a conviction for a crime not alleged in the charge.
We do not agree with defendant’s conclusion. A charge of sexual battery by threatening to use a deadly weapon would include as a lesser offense in this case sexual battery by threatening to use force likely to cause serious personal injury. Smith v. State, 340 So. 2d 1216 (Fla.4th DCA 1976). At trial the victim testified the appellant threatened to kill her if she did not submit to him. The only reasonable construction of the verdict form returned would be that it was intended to cover the latter offense. Nothing in the record before us indicates that defendant’s counsel challenged the form of verdict. Neither does the record contain the instructions given to the jury. Thus, we must assume the jury was properly instructed as to lesser included offenses, but that the trial court merely announced the wrong maximum penalty for the crime for which the defendant was found guilty.
The trial court has a right to determine whether the jury intended to convict the defendant of an offense for which judgment could be entered on the information. Fla.R.Crim.P. 3.530; Ex parte Wilson, 153 Fla. 459, 14 So. 2d 846 (1943).
Upon the foregoing reasoning, we find that the verdict and conviction was for an offense properly included within the charging document and supported by the evidence. As a technical matter, however, the judgment form should be corrected since it adjudicates the appellant guilty of “involuntary sexual battery as charged”, rather than for the lesser included offense of in [*CCCXXII] voluntary sexual battery by threatening use of force likely to cause serious personal injury. See: Ex parte Wilson, supra. We therefore remand the cause to the trial court for entry of a corrected adjudication. We affirm the sentence rendered by the trial court.
HOBSON, Acting C. J., and OTT, J., concur.
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Citator
Cited By
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Stafford Lake v. State, 380 So. 2d 1120 (Fla. 2d DCA 1980)…of the verdict returned by the jury. Appellant was [*1122] simply convicted of a lesser included offense of the charge in the information. This conviction is supported by ample evidence presented by the State and as we stated in McClanahan v. State, 377 So. 2d 240 (Fla. 2d DCA 1979), “The trial court has a right to determine whether the jury intended to convict the defendant of an offense for which judgment could be entered on the information.” We find no reversible error in the judgment and sentence entered…
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Pafford v. State, 433 So. 2d 40 (Fla. 1st DCA 1983)…d in this case was not responsive to the charge and insufficient to support a conviction, and in any event, the issue was not sufficiently raised before the trial court. See Lake v. State, 380 So. 2d 1120 (Fla. 2d DCA 1980), and McClanahan v. State, 377 So. 2d 240 (Fla. 2d DCA 1979). As to appellant’s second argument, however, we agree that there is error in the adjudication, in that the judgment form reflects a crime other than the crime of which the jury found appellant guilty, possession of cannabis in'…
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Robinson v. State, 471 So. 2d 632 (Fla. 1st DCA 1985)…fender has the present ability to execute these threats. Appellant argues he was convicted of a crime not charged and not included in the information because he contends the element of force was not alleged in the information. McClanahan v. State, 377 So. 2d 240 (Fla. 2d DCA 1979), and Gillespie v. State, 440 So. 2d 8 (Fla. 1st DCA 1983), support the state’s contrary position. In McClana-han the court held: A charge of sexual battery by threatening to use a deadly weapon would include as a lesser offense .…
Authorities Cited
- Smith v. State, 340 So. 2d 1216 (Fla. 4th DCA 1976)
- Odell Aaron Hicks v. State, 362 So. 2d 730 (Fla. 3d DCA 1978)
- Ex parte: Harvey Wilson, 153 Fla. 459 (Fla. 1943)