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In Hendry v. State, 571 So.2d 94 (Fla. 2d DCA 1990), the only Florida case addressing incest and adoption, the court held that the adoption statute, section 63.172, cannot erase the biological fact of lineal consanguinity and, therefore, a man can be convicted of incest for having sex with his biological daughter even though the daughter had been adopted by a third party prior to the intercourse.
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Nos. 90-01189, 90-01257.
December 14, 1990.
Appeal from the Circuit Court, Manatee County, Robert J. Boylston, J.
Earl W. Baden, Jr., Bradenton, for appellant Jimmy Hendry.
Harmon J. Karasick, Bradenton, for appellant Trina Hendry.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David R. Gemmer, Tampa, for appellee.
We affirm the trial court's denials of defendants' motions to dismiss the informations in which defendants were charged with incest under section 826.04, Florida Statutes (1987). That section renders felonious marriage or sexual intercourse with a person to whom a defendant "is related by lineal consanguinity." The informations alleged that defendants were father and daughter and that they were either married to each other or had had sexual intercourse with each other. It has been stipulated that defendant Trina Hendry had been adopted by a third party prior to her marriage to defendant Jimmy Clemont Hendry.
We recognize that the adoption statute includes in section 63.172(1)(b) the provision that adoption "terminates all legal relationships between the adopted person and his relatives, including his natural parents . . . so that the adopted person thereafter is a stranger to his former relatives for all purposes. . . ." However, as the Indiana Supreme Court has held, an adoption statute cannot erase lineal consanguinity. "It of course is impossible to nullify by legislative declaration the fact that the biological parents continue to be blood relatives of the child; the link of consanguinity cannot be erased by enactment." Bohall v. State, 546 N.E.2d 1214, 1215 (Ind. 1989). Further more, we agree with the trial court that by the passage of section 63.172 the legislature did not intend the absurd result of altering the above referenced biological fact. See State v. Webb, 398 So.2d 820, 824 (Fla. 1981).
Affirmed.
SCHEB, A.C.J., CAMPBELL and LEHAN, JJ., concur.