CHARLES ANDREW MATAVA, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the State is not required to prove the absence of intent to commit involuntary sexual battery when prosecuting a charge of lewd, lascivious, or indecent assault upon a child under fourteen.
[1] A statute defining a lewd, lascivious, or indecent assault upon a child does not require the prosecution to prove the absence of intent to commit involuntary sexual batte…
[2] A defendant cannot avoid punishment for a lesser offense by asserting an intent to commit a higher offense.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of lewd, lascivious, or indecent assault upon a child under fourteen. He appealed, arguing the State failed to prove the a…
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PER CURIAM.
The defendant, Charles Andrew Matava, Jr., appeals the judgment of the court finding him guilty of a lewd, lascivious or indecent assault upon a child under fourteen years of age without intent to commit involuntary sexual battery. This offense is set forth in Section 800.04, Florida Statutes (1975).
On this appeal, the defendant presents two points. The first is directed to the denial of a tendered instruction and the second questions the sufficiency of the evidence to support the verdict of the jury. The burden under each of these points is that it was the duty of the State to prove that the assault was committed “without the intent to commit involuntary sexual battery.” Defendant relies upon State v. Sumner, 157 Fla. 371, 26 So. 2d 336 (1946); and Bass v. State, 263 So. 2d 611 (Fla.4th DCA 1972). Each of these cases construed a prior statute and each held that an information charging the offense must be in the language of the statute and must include the element of absence of intent to commit involuntary sexual battery.
We hold that these cases are not governing and that a defendant may not escape punishment for the offense upon the basis that his mental attitude or intention was actually to commit the higher crime of involuntary sexual battery. The Supreme Court of Florida has given the trial court the initial responsibility in construing the statute in the Standard Jury Instructions. See Instruction 2.07; In re Standard Jury Instructions in Criminal Cases, 327 So. 2d 6 (Fla.1976); and In re Standard Jury Instructions in Criminal Cases, 240 So. 2d 472 (Fla.1970). Cf. Dorminey v. State, 314 So. 2d 134 (Fla.1975); and State v. Bryan, 287 So. 2d 73 (Fla.1973). The trial court in this instance met the requirement of this responsibility. This instruction does not require the proof of the negative under the crime for which defendant was convicted and, in this cause, the instruction was given. The judgment and sentence are, thereupon, affirmed.
Affirmed.
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)…e second degree_” (emphasis supplied). . Of course, "a defendant may not escape punishment for the offense upon the basis that his mental attitude or intention was actually to commit the higher crime of involuntary sexual battery.” Matava v. State, 358 So. 2d 1116 (Fla. 3d DCA), cert. denied, 364 So. 2d 888 (Fla.1978). See also Knox v. State, 361 So. 2d 799 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1373 (Fla.1979); Dunson v. State, 194 So. 2d 68 (Fla. 1st DCA 1967). This holding is in complete accord with…1 / 2
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Knox v. State, 361 So. 2d 799 (Fla. 1st DCA 1978)…regarding the sufficiency of the evidence to prove his guilt of a violation of Section 800.04 because the State did not prove his “negative intent”, i. e., his intent not to commit involuntary battery, has recently been discussed in Matava v. State, 358 So. 2d 1116 (Fla. 3d DCA 1978). We agree with the Court’s holding there that “a defendant may not escape punishment for the offense upon the basis that his mental attitude or intention was actually to commit the higher crime of involuntary sexual battery.” The…
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Palmer v. State, 838 So. 2d 579 (Fla. 1st DCA 2002)…1 So. 2d 799 (Fla. 1st DCA 1978)(holding that “a defendant may not escape punishment for the offense upon the basis that his mental attitude or intention was actually to commit the higher crime of involuntary sexual battery,” quoting Matavav. State, 358 So. 2d 1116 (Fla. 3d DCA 1978)). . Had the Legislature intended the statute to bar conviction for the conduct described in the information when perpetrated on children under the age of 12, it could have limited the applicability of section 800.04 to prohibit s…
Authorities Cited
- State v. Bryan, 287 So. 2d 73 (Fla. 1973)
- State v. McHANEY, 314 So. 2d 134 (Fla. 1975)
- In re the use by the trial courts of the Standard Jury Instructions IN Crim. Cases, 327 So. 2d 6 (Fla. 1976)
- In re the Use by the Trial Courts of the Standard Jury Instructions IN Crim. Cases, 240 So. 2d 472 (Fla. 1970)
- State v. Summer, 157 Fla. 371 (Fla. 1946)
- Bass v. State, 263 So. 2d 611 (Fla. 4th DCA 1972)