ROBERT PAUL GRIFFIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Paul Griffin appeals his conviction for statutory rape, arguing the trial court erred in convicting him under a statute not charged in the information. The Fourth District Court of Appeal reversed, finding the information charging common law rape failed to allege an essential element of statutory rape (that the victim was unmarried), making the conviction improper.
The trial court erred in convicting Griffin of statutory rape because the information failed to allege an essential element of statutory rape—that the victim was unmarried at the time of the intercourse. While a defendant may be convicted of a crime that is necessarily included or shown to be included within an information's allegations and proofs, statutory rape is not necessarily included in common law rape, and the information's allegations did not include all elements required for statutory rape conviction.
[1] A defendant cannot be convicted of an offense not charged in the accusatory pleading or necessarily included within it.
[2] A conviction for statutory rape under Section 794.05, Florida Statutes 1973, is improper when the information only charges common law rape under Section 794.01, Florida S…
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Join FLexlaw to unlock all legal intelligence“It is a fundamental right of a person called upon to respond to criminal charges to be notified by the accusatory pleading of all offenses for which he may be convicted in the proceeding.”
Establishes the constitutional foundation for requiring that all elements of a charged offense be alleged in the information
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Join FLexlaw to unlock all legal intelligenceGriffin was charged by information with common law rape under Florida Statutes Section 794.01(2), with an allegation that he unlawfully ravished and c…
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CROSS, Judge.
Appellant-defendant, Robert Paul Griffin, appeals a judgment of conviction and imposition of sentence for the offense of statutory rape, in violation of Section 794.-05, Florida Statutes 1973. Various issues are raised by the defendant on appeal, but one is dispositive. Did the trial court err in adjudging the defendant guilty of statutory rape under Section 794.05, Florida Statutes 1973, when the information charged the defendant with common law rape in violation of Section 794.01, Florida Statutes 1973.
It is a fundamental right of a person called upon to respond to criminal charges to be notified by the accusatory pleading of all offenses for which he may be convicted in the proceeding. Fla.Const. art. II, § 16. Nevertheless, by procedural rule and case construction thereof a defendant under a criminal charge may be convicted of any crime which is “necessarily included” in the offense charged or which is included within the allegations of the accusatory pleading and shown by the proofs. Rule 3.510 Fla.RCrP1973; and Brown v. State, 206 So. 2d 377 (Fla. 1968).
A necessarily included offense is one which is of necessity proved by proof of another offense. Brown v. State, supra. The state concedes, and we agree that the offense of statutory rape as proscribed by Section 794.05, Florida Statutes 1973, is not necessarily included within the offense of common law rape proscribed by Section 794.01(2), Florida Statutes 1973.
The state contends, however, that the offense for which the defendant was convicted, statutory rape, was an included offense for which the defendant could be convicted under the information because the elements of statutory'rape were alleged in the information and were shown by the evidence. In pertinent part the information alleged that the defendant did “unlawfully and fe-loniously ravish and carnally know (name of person) a female of previous chaste character and of the age of fifteen (15) years at the time of the offense, by force and against her will, contrary to F.S. 794.-01(2).”
The essential elements of statutory rape are (1) carnal intercourse, (2) the person with whom such intercourse was had was unmarried at the time thereof, (3) the person with whom such intercourse was had was of previous chaste character, and (4) the person with whom such intercourse. was had was under the age of eighteen years at the time of the intercourse alleged. Lowe v. State, 154 Fla. 730, 19 So. 2d 106 (1944); State v. Bowden, 154 Fla. 511, 18 So. 2d 478 (1944).
An examination of the information indicates that one of the essential elements of statutory rape, to-wit, the person with whom the carnal intercourse was had was unmarried at the time thereof, is absent. For this reason, we conclude that the trial court erred in adjudging the defendant guilty of statutory rape in violation of Section 794.-05, Florida Statutes 1973, under the averments of the aforesaid information.
Accordingly, the judgment and sentence is vacated and set aside, and the cause remanded to the trial court to discharge the defendant.
OWEN, J., and WOODSON, J. WILLIAM, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lanier v. State, 443 So. 2d 178 (Fla. 3d DCA 1983)…ful carnal intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years,” regardless of consent. See, e.g., Lowe v. State, 154 Fla. 730, 19 So. 2d 106 (1944); Griffin v. State, 322 So. 2d 587 (Fla. 4th DCA 1975). Thus, sexual intercourse with a child eleven years of age or younger is always a crime, but sexual intercourse with a child between the ages of twelve and eighteen is a crime only if the unmarried “victim” is of previous chaste…
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Victor v. State, 566 So. 2d 354 (Fla. 4th DCA 1990)…such intercourse is under the age of 18 years, shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. (emphasis added) This offense was previously known as “statutory rape.” Griffin v. State, 322 So. 2d 587 (Fla. 4th DCA 1975). By its wording, the statute is gender neutral. The appellant asserts that there must be a “penetration” of the victim and that here the only “penetration” was of the defendant. We recognize that several cases discuss “penetrati…
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Blow v. State, 386 So. 2d 872 (Fla. 1st DCA 1980)…of the knife. A person called on to respond to criminal charges has the fundamental right to be notified by the accusatory pleading of all offenses for which he may be convicted. Payne v. State, 275 So. 2d 261 (Fla. 4th DCA 1973); Griffin v. State, 322 So. 2d 587 (Fla. 4th DCA 1975). The Supreme Court, in Brown v. State, 206 So. 2d 383 (Fla.1968), states: “[W]e are confronted by the organic requirement that the accusatory pleading apprise the defendant of all offenses of which he may be convicted.” It follow…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. Rubin Bowden, 154 Fla. 511 (Fla. 1944)
- Lowe v. State, 154 Fla. 730 (Fla. 1944)