STATE OF FLORIDA
v.
WILLIAM HENRY SUMMER
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The Florida Supreme Court affirmed an order quashing an information charging lewd and indecent fondling of a minor. The court agreed that the information was insufficient because it did not allege the absence of intent to commit rape, a necessary element under the relevant statute.
No, the information was insufficient because it failed to allege that the acts were done without intent to commit rape, which is a distinguishing element of the charged offense.
“The absence of intent to commit rape prescribed by section 800.04- F.S.A. is a distinguishing element that defines the new field of coverage from our pre-existing statute against assault with attempt to commit rape and from our lewd and lascivious conduct statute, to-wit: Section 798.02; F.S.A., and that it should be alleged in instant information that the matters and things charged therein were done 'without intent to commit rape upon said child'”
This quote explains the lower court's reasoning for quashing the information, highlighting the necessity of alleging the absence of intent to commit rape.
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Join FLexlaw to unlock all legal intelligenceThe State of Florida appealed an order that quashed an information charging William Henry Sumner with handling and fondling a female child under fourt…
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The state has appealed from an order quashing an information with charges that:
“ . . . William Henry Sumner late of the County and State aforesaid, on the 6th day of May in the year of Our Lord One Thousand Nine Hundred and Forty-five, in the county and state aforesaid did handle and fondle Betty Jane Johnson, a *372female child under the age of fourteen years, in a lewd, lascivious and indecent manner. Contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida ...”
The order quashing the information reads:
“Defendant’s motion to quash the information herein this day coming on for final hearing, the Court finds that instant statute, to-wit: Section 800.00 F.S.A. covers a field not covered by our statute against assault with intent to commit rape as appears by the clear language of the Statute and that the absence of intent to commit rape prescribed by section 800.04- F.S.A. is a distinguishing element that defines the new field of coverage from our pre-existing statute against assault with attempt to commit rape and from our lewd and lascivious conduct statute, to-wit: Section 798.02; F.S.A., and that it should be alleged in instant information that the matters and things charged therein were done ‘without intent to commit rape upon said child’; NOW THEREFORE IT IS ORDERED AND ADJUDGED that said motion to quash be and the same is hereby sustained and granted and said information is hereby quashed.”
We find no error in the order and the same is affirmed.
CHAPMAN, C. J„ TERRELL and BUFORD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Allison v. State, 162 So. 2d 922 (Fla. 1st DCA 1964)…e also think that aggravated assault, as defined in Sec. 784.04, Florida Statutes, F.S.A., is a lesser included offense under the charge and evidence at the trial. We note, however, that the Supreme Court of Florida in State v. Sumner, 157 Fla. 371, 26 So. 2d 336 (1946) indicated that lewd and lascivious conduct, as defined in Sec. 800.04, is in a different area from assault with intent to commit rape, so we feel that such conduct is not a lesser offense necessarily included in such assault. The right to ha…
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Lanier v. State, 443 So. 2d 178 (Fla. 3d DCA 1983)…his conduct. We also make clear that the defendant does not contend that Section 800.-04, Florida Statutes (1981), an essential element of which is that the accused’s acts be done “without the intent to commit sexual battery,”2 see State v. Sumner, 157 Fla. 371, 26 So. 2d 336 (1946) (affirming trial court order quashing information charging offense under former Section 800.04 where allegation that defendant acted without intent to commit rape omitted); cf. Bass v. State, 263 So. 2d 611 (Fla. 4th DCA), cert…
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O'Bright v. State, 508 So. 2d 385 (Fla. 1st DCA 1987)…version of the statute, the majority concluded that section 800.04 was not a lesser included offense of section 794.011 crimes, adhering to the traditional view expressed in Ray v. State, 403 So. 2d 956 (Fla.1981), and State v. Sumner, 157 Fla. 371, 26 So. 2d 336 (Fla.1946), and rejecting the notion that the supreme court’s decision in Lanier v. State, 464 So. 2d 1192, had altered the holding of those decisions. Judge Sharp's dissenting opinion concluded that the amendment in chapter 84-86, although not appl…
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