324 So.3d 920
Fla.2021Background
- Petitioner Reggie Allen was charged with multiple sexual offenses against T.W., his ex-girlfriend’s daughter; Count I alleged capital sexual battery for acts between March 25, 2010 and March 24, 2012, when T.W. was 9–10 years old.
- At trial T.W. testified to multiple oral-sex incidents occurring at ages 9, 11, and 13; Allen denied the acts.
- Allen requested a jury instruction that noncapital sexual battery is a necessarily lesser included offense of capital sexual battery; the trial court denied the request for Count I because it was undisputed T.W. was under 12 during that period.
- The jury was instructed on other lesser offenses, convicted Allen on all counts, and Allen appealed; the First DCA affirmed and certified whether the 2018 Schedule erroneously classifies sexual battery as a necessarily lesser included offense of capital sexual battery.
- The Florida Supreme Court held the Schedule was incorrect: sexual battery is not a necessarily lesser included offense of capital sexual battery because the statutory age elements are mutually exclusive; the Court affirmed that a permissive lesser instruction may be proper when victim age is disputed (as to a different count).
Issues
| Issue | Allen's Argument | State's Argument | Held |
|---|---|---|---|
| Whether sexual battery (§ 794.011(5)) is a necessarily lesser included offense of capital sexual battery (§ 794.011(2)(a)) | Sexual battery should be a category-one (necessarily) lesser included offense; jury should be instructed | Sexual battery requires victim ≥12 while capital sexual battery requires victim <12; elements are mutually exclusive so it cannot be necessarily included | No — sexual battery is not a necessarily lesser included offense of capital sexual battery; the Committee’s Schedule was incorrect |
| Whether instructing on sexual battery was required on Count I (victim undisputedly <12) or permissible on counts where age is disputed | Instruction required (Allen sought instruction) | Denial proper for Count I because victim under 12 during that period; permissive instruction may be given only when age is in dispute | Denial for Count I was proper; permissive (category-two) instruction may be given when evidence makes victim’s age a triable fact (e.g., Count III) |
Key Cases Cited
- Sanders v. State, 944 So. 2d 203 (Fla. 2006) (defines necessarily vs. permissive lesser included offenses)
- Wimberly v. State, 498 So. 2d 929 (Fla. 1986) (trial judge has no discretion to refuse instruction on a necessarily lesser included offense)
- Weller v. State, 590 So. 2d 923 (Fla. 1991) (instruction required where elements of lesser are alleged and supported by evidence)
- Pizzo v. State, 945 So. 2d 1203 (Fla. 2006) (compare statutory elements to determine lesser-included status)
- Terry v. State, 336 So. 2d 65 (Fla. 1976) (element-subsumption example: larceny necessarily included in robbery)
- In re Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So. 2d 594 (Fla. 1983) (creation and purpose of the Schedule of Lesser Included Offenses)
- Beck v. Alabama, 447 U.S. 625 (1980) (lesser-included doctrine protects jury’s ability to convict of a lesser offense when proof of some elements is lacking)
- Knight v. State, 286 So. 3d 147 (Fla. 2019) (Rule 3.510 and Wimberly interpreted to limit judge’s discretion on necessarily included instructions)