holding that the next lesser offense when sexual battery of a physically helpless victim is not established is misdemeanor battery
How later courts described this case
- holding that the next lesser offense when sexual battery of a physically helpless victim is not established is misdemeanor battery
- statute allowing appellate court which determines that evidence does not prove charged offense, but does support guilt of lesser included offense, to reverse judgment and direct trial court to enter judgment for lesser offense applies to both necessary lesser included offenses and permissive lesser included offenses
- a juvenile judge may rely on a statutory provision aimed at adult criminal cases if there is no counterpart in the laws relating to juveniles and nothing to suggest that the legislature intended to treat juveniles differently from adults
- not excluding the possibility that a person could obtain or use a conveyance, as required in grand theft, without entering in it, as required in a trespass in a conveyance
Written by the judges who cited it.
The opinion
HARDING, J.,
concurring in result only.
Although I agree that the adjudications in the instant case should not have been affirmed, I respectfully disagree with the majority’s interpretation of section 924.34, Florida Statutes (1995). I believe the language used in that section is clear. Accordingly, I would hold that section 924.34 applies only to offenses necessarily included in the offense charged.
I believe the majority’s reliance on Judge Cope’s reasoning in the District Court of Appeal’s G.C. opinion is misplaced. G.C. was primarily concerned with the issue of whether Florida’s omnibus theft statute required a finding of specific intent; section 924.34 was a minor issue in our disposition of that case. Because our ruling in Gould thoroughly analyzed the policy underlying section 924.34, as well as the ramifications of extending it to include permissive lesser-included offenses, I believe Gould is the better case for us to follow here.
I would therefore follow Gould, but recede from G.C. to the extent it holds that section 924.34 applies to permissive lesser offenses. I do, however, agree with the majority’s decision that the adjudications of delinquency in the instant case must be vacated.
KOGAN, C.J. and ANSTEAD, J., concur.