Opinion
No. 78-1910.
March 5, 1980. Rehearing Denied March 18, 1980.
Appeal from the Circuit Court for Pinellas County, John A. Andrews, J.
Jack O. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
Appellant, Stafford Lake, was charged by information with two counts of involuntary sexual battery in violation of Section 794.011(3), Florida Statutes (1977). Count II of the information charged that appellant "did commit a sexual battery . . . and did threaten to use deadly weapons, to wit: a knife and firearm . . . ."
At trial, the court instructed the jury as to the essential elements of the crime of sexual battery with a deadly weapon or actual physical force likely to cause serious personal injury. The court further defined "sexual battery" and "consent." The court went on to state that a lesser included offense of involuntary sexual battery with a deadly weapon is "involuntary sexual battery with a weapon." In the portion of the jury charge which dealt with possible penalties, the court stated:
The law provides that the maximum penalty for the offense as charged, that involuntary sexual battery with a deadly weapon set forth in Count One and Count Two of the information is life imprisonment. . . . The possible penalty with a weapon, involuntary sexual battery with a weapon, . . . is thirty years.
After deliberations, the jury returned a verdict of not guilty as to Count I, and as to Count II, "guilty of involuntary sexual battery with a weapon, as included in Count II of the information filed herein." The court then adjudicated appellant guilty of sexual battery with a weapon and sentenced him to thirty years imprisonment.
Appellant argues that his conviction for sexual battery with a weapon must be reversed because Section 794.011 does not proscribe or delineate that crime. He concedes, however, that he voiced no objection to the State's requested instruction on sexual battery with a weapon nor to the trial court's decision to give such an instruction. We cannot agree with appellant's argument and, for reasons set out hereinafter, we affirm the conviction and sentence entered against him.
Upon a careful reading of the record in this cause, we have concluded that the court did not err in its instruction to the jury. Obviously, everyone involved understood that the court had defined the offense of sexual battery with a weapon as a lesser included offense of sexual battery with a deadly weapon. This was confirmed when the court instructed as to the possible penalties involved and again at the sentencing when the court asked the prosecutor, "What is the maximum?" The prosecutor replied, "Thirty years, Your Honor."
Section 794.011(3) proscribes the crime of sexual battery with a deadly weapon or the actual use of physical force likely to cause serious personal injury. This offense is a life offense punishable under Section 775.082 by a term of imprisonment for life or for a term of years not less than thirty. Section 794.011(4)(b) proscribes the crime of sexual battery by threatening to use force or violence likely to cause serious personal injury on the victim. This offense is a first-degree felony punishable under Section 775.082(3)(b) by a term of imprisonment not exceeding thirty years. The word "weapon" is defined as "an instrument of offensive or defensive combat; something to fight with; anything used, or designed to be used in destroying, defeating, or injuring, an enemy, as a gun, a sword, a shield, etc." Webster's New International Dictionary, Second Edition (1957), at 2892. In the context of the trial, the use of a weapon to commit the sexual battery was the equivalent of the threat of using force and violence likely to cause serious personal injury. We find nothing confusing in the trial court's instruction and the form of the verdict returned by the jury. Appellant was simply convicted of a lesser included offense of the charge in the information. This conviction is supported by ample evidence presented by the State and as we stated in McClanahan v. State, 377 So.2d 240 (Fla. 2d DCA 1979), "The trial court has a right to determine whether the jury intended to convict the defendant of an offense for which judgment could be entered on the information."
We find no reversible error in the judgment and sentence entered against appellant. It is necessary, however, that the judgment form be corrected to reflect that appellant was found guilty of involuntary sexual battery by threatening to use force or violence likely to cause serious personal injury on the victim, as included in Count II of the charging document.
We remand this cause to the trial court for entry of a corrected adjudication. We affirm the sentence rendered by the trial court.
SCHEB, J., concurs.
GRIMES, C.J., concurs specially with opinion.
I concur in the result that the court has reached.
The following side-bar conference which took place at the time of closing argument is most revealing:
THE COURT: On the verdict forms I goofed up when we were in chambers having our discussion. The lesser included is not with a weapon. The lesser included is by threatening to use force or violence likely to cause great bodily harm. In other words, we were discussing with a weapon and without a firearm or with a weapon. What the statute says is with a firearm which would be as charged. And then the lesser would be by threatening to use force or violence likely to cause serious personal injury. In other words, that is a first degree felony as opposed to a life felony but I wanted to mention it to you because that is what the statute states, as well as the instruction.
Obviously the verdict forms should comply with what the law is.
MS. HOFFENBERG: In other words you are not going to submit the force and violence?
THE COURT: Yes, I am. In other words, it will be as charged and then with force and violence and then the other lesser included. There will be two involuntary sexual battery charges, one with a weapon, one by force or violence.
MS. HOFFENBERG: The only thing I have a problem with there is no force or violence alleged in the information at all, nothing about force or violence. There is no allegation in other words to support coming back with a verdict like that. I think we stated in chambers it would be a deadly weapon and use of a weapon.
MR. BERGMAN: Your Honor, I would love to have that but as a precaution I would just as soon not have it. We have alleged that the basis for the rape was that she consented as a result of fear and the fear not being through force or violence. But rather we have alleged specifically through threatening with a deadly weapon. I am afraid of that.
THE COURT: So you think we were right the first time without a weapon or with a weapon?
MR. BERGMAN: Yes, Your Honor. I wouldn't want to take a chance on it. I think it seems to come logically together.
THE COURT: Back to the drawing board as it was with a weapon as included.
Ironically, we are now considering judicial error, even though the court followed the procedure requested by both appellant's counsel and the state attorney.
With respect to appellant's contention that he was convicted of a nonexistent crime, it is evident that everyone involved treated threatening to use a weapon to commit sexual battery as being tantamount to threatening to use force and violence likely to cause serious personal injury. Moreover, because appellant's counsel insisted on the threatening to use a weapon charge, appellant cannot now complain that the crime proscribed by Section 794.011(4)(b), Florida Statutes (1977), may not be a lesser included offense under the crime charged in Count II. Ray v. State, 374 So.2d 1002 (Fla. 2d DCA 1979); Jones v. State, 358 So.2d 37 (Fla. 4th DCA 1978). Substantial justice was obtained through the verdict, and appellant cannot point to harmful error.