Opinion
No. 87-1817.
November 9, 1988.
Appeal from the Circuit Court, Pinellas County, Howard P. Rives, J.
James Marion Moorman, Public Defender, Bartow, and Brad Permar, Asst. Public Defender, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for appellees.
We affirm defendant's conviction for sexual battery of a child under 12 years of age. We do not agree with defendant's contention that the crime of sexual battery under section 794.011, Florida Statutes (1985), is not committed when a so-called foreign object (here, defendant's finger), and not a sexual organ, is used in the act of penetration unless there is an intent by the actor to obtain sexual gratification. State v. Alonso, 345 So.2d 740 (Fla. 3d DCA 1977), is authority for that contention. As Judge Hubbart's concurring opinion in Alonso points out, the Third District Court of Appeal in that case "[b]y its decision . . . has held that an essential element of the crime of sexual battery under Section 794.011, Florida Statutes (1975), is a criminal intent to obtain sexual gratification, which element the state must allege and prove." Id. at 743. However, in Aiken v. State, 390 So.2d 1186, 1187 (Fla. 1980), the Florida Supreme Court specifically said, "The decision of the Third District Court of Appeal in Alonso is overruled." See also Judge Dauksch's concurring opinion in State v. Aiken, 370 So.2d 1184, 1186-87 (Fla. 4th DCA 1979).
We conclude that defendant's other contention on appeal is without merit.
AFFIRMED.
SCHOONOVER, A.C.J., and THREADGILL, J., concur.