LESTER JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant was convicted of attempting to commit a lewd, lascivious or indecent assault upon a child under 14 and sentenced as a recidivist to 10 years imprisonment. The court affirmed the conviction but vacated the sentence because the trial judge failed to comply with the Child Molester Act's requirement for psychiatric examination and because the enhanced recidivist sentence was imposed without a separately filed information charging the prior offenses.
The judgment and conviction are affirmed, but the sentence is vacated and set aside. The trial court must comply with F.S. § 801.051 by appointing required psychiatrists for examination and report prior to sentence imposition, and an enhanced recidivist sentence cannot be imposed without the state having previously proceeded on a separately filed information charging the specific prior offenses pursuant to F.S. § 775.11.
[1] A sentence imposed under the Child Molester Act requires compliance with statutory provisions mandating examination by qualified psychiatrists prior to sentencing.
[2] An offense under the Child Molester Act includes attempts to commit offenses listed within the Act.
Previewing 2 of 3 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“it is incumbent upon the trial judge, prior to the imposition of any sentence therefor, that he comply with the provisions of F.S. § 801.051, F.S.A.1971, et seq., and appoint the required psychiatrists for examination and report.”
Establishes the mandatory requirement that trial judges must follow the Child Molester Act's psychiatric examination procedure before sentencing in such cases.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was charged with committing, but convicted of attempting to commit, a lewd, lascivious or indecent assault or act upon a child under 14 year…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Recidivist Statutes cases and more on FLexlaw
McNULTY, Judge.
Appellant was charged with committing, but was convicted of attempting to commit, a lewd, lascivious or indecent assault or act upon a child under the age of fourteen years as proscribed by § 800.04, F.S.A.1971. Such offense is ordinarily punishable as a third degree felony for which a maximum of five years imprisonment is prescribed by F.S. § 775.083, F.S. A.1971. Appellant was summarily sentenced as a recidivist, however, pursuant to F.S. § 775.084, F.S.A.1971, and received a maximum term of ten years in state penitentiary. Additionally, it appears, appellant was sentenced absent compliance with the provisions of the Child Molester Act, F.S. Ch. 801, F.S.A.1971, in that he was so sentenced without having been examined by no less than two nor more than three qualified psychiatrists as is expressly directed by F.S. § 801.051, F.S.A.1971. Accordingly, while we have concluded from a careful review of the record that the evidence is fully sufficient to support the verdict found and the judgment entered, nevertheless for two reasons the sentence must be set aside.
First, we reiterate that the charge was brought under § 800.04, supra. This offense certainly qualifies as an offense within the meaning of the Child Molester Act, Ch. 801, svipra,
as does, we believe, the attempt to commit such offense of which appellant was actually found guilty. Therefore, as we held in Wilson v. State2 and Wolf v. State,3 it is incumbent upon the trial judge, prior to the imposition of any sentence therefor, that he comply with the provisions of F.S. § 801.051, F.S.A.1971, et seq., and appoint the required psychiatrists for examination and report. Thereafter, of course, he may direct imprisonment or order commitment to the Division of Corrections of the Department of Health and Rehabilitative Services for treatment and rehabilitation as he may be advised.4 As noted, this procedure was not followed in this case.
Secondly, concerning the enhanced sentence imposed on appellant as a recidivist, we have most recently held in Wright v. State5 that such a sentence cannot summarily be imposed without the state having previously proceeded on a separately filed information charging the specific prior offenses upon which recidivism is to be predicated. This, we held, is required by F.S. § 775.11, F.S.A.1971. It was not done here.
In view of the foregoing therefore, the judgment appealed from must be affirmed; but the sentence entered thereon should be, and it is hereby, vacated and set aside and the cause is remanded for further proceedings not inconsistent herewith.
MANN, C. J., and GRIMES, J., concur. . See, § 801.041 which provides as follows: “Definition of offense. An offense under the provisions of this chapter shall include attempted rape, sodomy, attempted sodomy, crimes against nature, attempted crimes against nature, lewd and lascivious behavior, incest, attempted incest, assault (when 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).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Micky Dale Davis v. State, 527 So. 2d 962 (Fla. 5th DCA 1988)…by his request for that verdict form. Cf. Ray v. State, 403 So. 2d 956 (Fla.1981). No case has held that attempted lewd and lascivious assault does not constitute a crime. In fact, the defendant was convicted of such an offense in Johnson v. State, 292 So. 2d 426 (Fla. 2d DCA 1974). Additionally, attempt is listed as a Category II lesser offense of lewd and lascivious assault in the Schedule of Lesser Included Offenses contained in The Florida Standard Jury Instructions in Criminal Cases. We conclude that Da…
-
Green v. State, 349 So. 2d 741 (Fla. 2d DCA 1977)…nt was convicted is clearly one that falls within the purview of the act. Section 801.041 Florida Statutes (1975). The duty is on the judge, not the State or the defendant, to insure the procedures required by the act are followed. Johnson v. State, 292 So. 2d 426 (Fla.2d DCA 1974). Strict compliance is mandatory. Thomas v. State, 345 So. 2d 778 (Fla.2d DCA 1977). Appellant’s sentence is therefore set aside and the cause remanded for compliance with the Child Molester Act; otherwise affirmed. BOARDMAN, C. J…
-
Beatty v. State, 332 So. 2d 365 (Fla. 2d DCA 1976)…ed. Where a person is convicted of an offense under the Child Molester Act, it is incumbent upon the trial judge prior to the imposition of sentencing to comply with the provisions of Fla.Stat. § 801.051 (1973). Johnson v. State, Fla.App. 2d, 1974, 292 So. 2d 426. In the words of the statute, the issue turns upon whether involuntary sexual battery is “an offense within the meaning” of Chapter 801. Fla.Stat. § 801.041 (1973) reads as follows: “801.041 Definition of offense. — An offense under the provisions…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wright v. State, 291 So. 2d 118 (Fla. 2d DCA 1974)
- Wilson v. State, 282 So. 2d 667 (Fla. 2d DCA 1973)
- Wolf v. State, 282 So. 2d 668 (Fla. 2d DCA 1973)