Tampa Criminal Lawyer Blog
In 2018, the Florida Supreme Court promulgated a schedule of lesser included offenses. Recently, the court answered the certified question of whether it erred in classifying sexual battery as a necessarily lesser include offense of capital sexual battery, ultimately determining that it did. The court set forth its conclusion in an opinion issued in a Florida case in which the defendant was convicted of both capital sexual battery and sexual battery. If you are accused of a sex crime, it is advisable to meet with a Tampa sex crime defense lawyer to assess what defenses you may be able to assert in pursuit of a favorable outcome.
Procedural Background of the Case
It is reported that the defendant was charged with one count of lewd exhibition and three counts of sexual battery, arising out of elicit contact he had with his ex-girlfriend’s daughter when the daughter was between nine and fifteen years old. The victim testified at trial, reporting the acts occurred on over twenty different occasions, but three stood out in particular: once when she was 9, once when she was 11, and once when she was 13.
Allegedly, after the evidence was introduced at trial, the defendant requested that the court instruct the jury on the sexual battery as a necessarily lesser included offense of capital sexual battery. At that time, the schedule of lesser included offenses did, in fact, list sexual battery as a necessarily lesser included offense of sexual battery. The State objected to the instruction, arguing it was illogical. The court agreed and denied the request. The defendant was convicted, and he appealed. The appellate court affirmed the trial court ruling and certified the question to the Florida Supreme Court.
Lesser Included Offenses Under Florida Law
A lesser included offense is a crime whose elements are contained entirely within the elements of another, more serious crime. To determine a crime qualifies as a lesser include offense, the court will compare the statutory elements of each offense. Lesser included offenses are further divided into two groups: necessary or necessarily included offenses and permissive offenses.
A necessarily lesser included offense are those in which the elements of the lesser offense are always included in the elements of the charged offense. Put another way, each element of a necessarily lesser offense is also always an element of the greater offense. As such, if a defendant committed the elements of the greater crime, he necessarily committed the elements of the lesser crime. Permissive lesser included offenses exist when the two offenses appear to be separate, but the facts alleged in the pleadings are such that a commission of the greater offense will automatically result in a commission of the lesser offense.
Based on the foregoing, the court answered the certified question in the affirmative, stating that because the elements of sexual battery are never subsumed within the elements of capital sexual battery, it could not be a lesser included offense.
Speak with a Skilled Tampa Sex Crime Defense Attorney
If you live in Tampa and are charged with one or more sex crimes, it is in your best interest to speak with an attorney to assess your options. Â William Hanlon of Hanlon Law is a skilled Tampa sex crime defense attorney who can develop a strategy that will provide you with a strong chance of a successful legal result. Mr. Hanlon can be reached through the form online or at 813-228-7095 to schedule a meeting.