JOHNNY LEE BRICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for sexual battery was reversed because the trial court erred in refusing to instruct the jury on assault and battery as necessarily lesser included offenses when requested by the defendant.
A trial court commits reversible error by refusing to instruct the jury on necessarily lesser included offenses of assault and battery when requested by the defendant in a sexual battery prosecution.
[1] Assault and battery are necessarily lesser included offenses of sexual battery under Florida law, and a trial court commits reversible error by refusing to instruct the j…
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with sexual battery committed by threat of force or violence likely to cause serious personal injury. The jury was instructed on…
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GRIMES, Judge.
Appellant was charged with sexual battery committed by threat of force or vio lence likely to cause serious personal injury.1 The jury was instructed on 1) the offense charged, 2) the attempt to commit the offense charged, and 3) sexual battery by force and violence not likely to cause serious personal injury.2 He was convicted of the latter offense.
Appellant made a timely request for an instruction on the offenses of assault3 and battery.4 The court declined to charge or give a proposed jury verdict on either of these offenses. In DeLaine v. State, 262 So. 2d 655 (Fla.1972), the supreme court stated that assault and battery and bare assault were lesser included offenses of the crime of rape. The crimes of assault and battery continue to be necessarily lesser included offenses under the new sexual battery statute. Therefore, it was error to refuse to charge on these offenses.
The failure to instruct on a necessarily lesser included offense when requested by the defendant cannot be harmless error. Lomax v. State, 345 So. 2d 719 (Fla.1977); State v. Terry, 336 So. 2d 65 (Fla.1976). Since appellant was convicted of the least serious offense upon which the jury was charged, the “two steps removed” rationale of DeLaine v. State, supra, is inapplicable.
The judgment and sentence must be reversed, and the case remanded for a new trial.
BOARDMAN, C. J., and HOBSON, J., concur. . § 794.01 l(4)(b), Fla.Stat. (1973).
. § 794.011(5), Fla.Stat. (1975).
. § 784.011, Fla.Stat. (1975).
. § 784.03, Fla.Stat. (1975).
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Citator
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State v. Rider, 449 So. 2d 903 (Fla. 3d DCA 1984)…ommon law husband and wife may be prosecuted for assault and battery upon one another). Because spousal prosecution for assault and battery is proper and because assault and battery are lesser included offenses of sexual battery, see Brice v. State, 348 So. 2d 636 (Fla. 2d DCA 1977), it logically follows that a spouse may be prosecuted for the greater offense of sexual battery.…
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Davenport v. State, 429 So. 2d 1352 (Fla. 2d DCA 1983)…ry. We have previously held that it is reversible error if a trial court refuses to give a requested instruction on battery in a prosecution for sexual battery using physical force or violence likely to cause serious personal injury. Brice v. State, 348 So. 2d 636 (Fla. 2d DCA 1977). See also DeLaine v. State, 262 So. 2d 655 (Fla.1972). In the case at bar, appellant’s requested instruction on battery was but one step removed from the offense charged. Failure to instruct as requested on the next immediate les…
Authorities Cited
- Lomax v. State, 345 So. 2d 719 (Fla. 1977)
- DeLAINE v. State, 262 So. 2d 655 (Fla. 1972)
- State v. Terry, 336 So. 2d 65 (Fla. 1976)