179 So. 3d 388
Fla. Dist. Ct. App.2015Background
- Defendant Italo Funiciello was tried by jury and convicted on two counts of lewd or lascivious battery (one count alleging digital penetration, one alleging penile penetration of the victim’s vagina) involving a victim aged 12–15.
- Trial court entered judgment and imposed consecutive eight-year prison terms; defendant appealed.
- Defense requested a jury instruction on the category-two permissive lesser-included offense of "unnatural and lascivious act" (a misdemeanor under §800.02).
- Trial court refused the requested instruction, stating the information did not set forth the elements for that offense.
- Defendant additionally argued the court committed fundamental error by failing to sua sponte give a limiting instruction on Williams-rule (similar-fact) evidence; the court had informed defense counsel an instruction would be given if requested, but counsel did not request it.
- The appellate court reviewed whether the permissive lesser instruction was supported by the pleadings/evidence and whether refusal was reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing instruction on category-two lesser-included offense (unnatural and lascivious act) | State: §800.02 need not apply where specific sex offenses under §800.04 are charged; "unnatural" limited to acts not otherwise criminalized | Funiciello: charged acts (digital penetration, intercourse with child) fall within §800.02 and supported permissive lesser instruction | Reversed: court erred — instruction should have been given because the charged/proved acts fit the statutory and jury-instruction definition of "unnatural and lascivious" |
| Whether trial court committed fundamental error by not sua sponte giving Williams-rule limiting instruction | State: No fundamental error; defense counsel did not request the limiting instruction after court said it would give one if asked | Funiciello: court should have instructed jury on limited purpose of Williams evidence without request | Held: No fundamental error shown (defense failed to request), but court noted such limiting instructions should be given in all cases involving Williams-rule evidence whether requested or not |
Key Cases Cited
- Rodriguez v. State, 172 So.3d 540 (Fla. 5th DCA 2015) (abuse-of-discretion review for jury-instruction decisions)
- Boland v. State, 893 So.2d 683 (Fla. 2d DCA 2006) (distinguishing category-one and category-two lesser-included offenses)
- Cooper v. State, 512 So.2d 1071 (Fla. 1st DCA 1987) (court may analyze indictment and proof to determine if category-two offense is charged/proved)
- State v. Wimberly, 498 So.2d 929 (Fla. 1986) (framework for lesser-included analysis)
- Williams v. State, 627 So.2d 1279 (Fla. 1st DCA 1993) (permissive lesser-included instruction for unnatural and lascivious act required where information and proof support it)
- Horn v. State, 120 So.3d 1 (Fla. 1st DCA 2012) (refusal of unnatural-and-lascivious instruction reversed)
- Sherrer v. State, 898 So.2d 260 (Fla. 1st DCA 2005) (unnatural and lascivious is permissive lesser of lewd/lascivious offenses; refusal to instruct was error)
- Williams v. State, 110 So.2d 654 (Fla. 1959) (Williams rule on admission and limiting instruction for similar-fact evidence)