JOHN WAYNE TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Wayne Turner was convicted of attempted sexual battery involving force likely to cause serious personal injury. Turner appealed, arguing the trial court erred in refusing to instruct the jury on the lesser included offense of attempted sexual battery involving force not likely to cause serious personal injury. The court affirmed, holding that such an instruction was not required because the charging document alleged only the higher offense and the evidence showed force that actually caused serious injury.
The trial court did not err in refusing the requested jury instruction because the information charged only the higher offense and the evidence showed force that was not only likely to but did cause serious personal injury, not force merely likely to cause serious injury.
[1] A lesser included offense instruction is required only when supported by the accusatory pleadings and the evidence presented.
[2] Sexual battery involving the use of force not likely to cause serious personal injury is a category four lesser included offense of sexual battery involving the use of fo…
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Join FLexlaw to unlock all legal intelligence“sexual battery involving the use of force not likely to cause serious personal injury is a category four lesser included offense of sexual battery involving the use of force likely to cause serious personal injury”
Establishes the legal relationship between the two offenses under Florida law
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Join FLexlaw to unlock all legal intelligenceTurner and a friend drove the victim to an isolated area near an orange grove. The victim testified that Turner knocked her to the ground, forcibly re…
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ANSTEAD, Judge.
This is an appeal from a conviction for attempted sexual battery involving the use of force likely to cause serious personal injury.1 The appellant claims error in the trial court’s refusal to instruct the jury on attempted sexual battery involving the use of force not likely to cause serious personal injury.2 We affirm.
Turner was charged, tried, and convicted of attempted sexual battery. The victim testified that after being forced into a vehicle and driven to an isolated area near an orange grove, she was knocked to the ground by Turner and her clothing forcibly removed. She was then thrown down an embankment and her head held underwater. Thereafter, her arm was twisted causing it to break and a stick or other object was inserted into her vagina and rectum. Two physicians testified that the victim received serious personal injuries including a permanently disabling injury to the arm. Turner admitted that he and a friend drove the victim to the area of the orange grove, but he denied assaulting the victim in any way. He testified that she disappeared into the orange grove after leaving the vehicle and he and his friend left.
This court has held that sexual battery involving the use of force not likely to cause serious personal injury is a category four lesser included offense of sexual battery involving the use of force likely to cause serious personal injury, under Brown v. State, 206 So. 2d 377 (Fla.1968). Wagner v. State, 356 So. 2d 867 (Fla. 4th DCA 1978); Smith v. State, 340 So. 2d 1216 (Fla. 4th DCA 1976). It is not a necessarily included offense. Hence, an instruction is required on this offense only when supported by the accusatory pleadings and the evidence.
In this case the information charged Turner only with the higher offense, and there was no evidence of the use of force not likely to cause serious personal injury. The undisputed evidence showed force that was not only likely to, but did, cause serious personal injury. Under these circumstances the trial court did not err in refusing to give the instruction requested. Accordingly, the judgment of the trial court is affirmed.
MOORE, J., and SIMONS, STUART M., Associate Judge, concur. . § 794.011(3), Florida Statutes (1975).
. § 794.011(5), Florida Statutes (1975).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Carter v. State, 380 So. 2d 541 (Fla. 5th DCA 1980)…of Section 794.011(4) and (5), Florida Statutes, have been held to be category four lesser included offenses of Section 794.-011(3), Florida Statutes, a determination which in any particular case depends upon the pleading and proof. Turner v. State, 363 So. 2d 1 (Fla.4th DCA 1978); Wagner v. State, 356 So. 2d 867 (Fla.4th DCA 1978); Smith v. State, 340 So. 2d 1216 (Fla.4th DCA 1976). The state then concedes in its brief that the pleading did not allege the actual use of force, but contends that the proof at…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Smith v. State, 340 So. 2d 1216 (Fla. 4th DCA 1976)
- Wagner v. State, 356 So. 2d 867 (Fla. 4th DCA 1978)