Duke v. StateDuke v. State
Appellant Carl Duke appeals from judgments and sentences entered after jury verdicts finding him guilty of two counts оf attempted sexual battery under
In the two-count infоrmation, appellant was charged with one count of attempting to insert his penis in the anus of a five-year-old female child and a second, separate count of attempting to insert his penis in the vagina of said child.
The trial court sentenced appellant to thirty years on Count I and thirty years on Count II to run consecutive to the term imposed on Count I. In addition, the court ordered appellant, who had been adjudged insolvent, to pay court costs pursuant to
Appellant first alleges that the trial court committed reversible еrror in sentencing him to thirty years on each count. In support of his position, he relies on the authority of our supreme court in Buford v. State, 403 So.2d 943 (Fla. 1981), wherein that court announced that a violation of
Appellant contends that inasmuch as a conviction under
As further support for his position, appеllant directs us to the holding of our sister court in Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983). There, as here, the defendant was charged with sexual battery under
What appellant apparently fails to recognize is this court‘s opinion in Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983)1 that held
even though sexual battery under
section 794.011(2) is not a capital crime in the sense that it may result in the imposition of the death pеnalty, the punishment for that crime must still be imposed undersection 775.082(1) to its constitutional limits. This means that one convicted undersection 794.011(2) must be automatically “punished by lifе imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole.”Section 775.082(1) .
In so holding, this court followed the lead of the Florida Supreme Court in Donaldson v. Sack, 265 So.2d 499 (Fla. 1972) wherein the court preserved the sentencing under
We find no difficulty with a continuation of the sentencing for these former “capital offenses” under § 775.082(1) as automatically life imprisonment upon conviction, inasmuch as that is the only offense left in the statute... . The elimination of the death penalty from the statute does not of course destroy the entire statute. We have steadfаstly ruled that the remaining consistent portions of statutes shall be held constitutional if there is any reasonable basis for doing so and of cоurse this clearly exists in these circumstances.
265 So.2d at 502-03. Because of the foregoing language in Donaldson, we expressly disagreed with the premise in Hogan that sexual battery under
Appellant next contends the attack on the victim constituted only a single violation of the sexual battery statute and therefore the trial court erred in sentencing him for both offenses. Specifically, appellant submits that the elapsеd period of time (a matter of seconds) was insufficient to separate one attempted penetration from the other. We disagree.
“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal оr vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide mеdical purposes.
As the statute indicates, each act is a sexual battery of a separate character and type which logically requires different elements of proof. Clearly, penetration of the vagina and penetration of the anus arе distinct acts necessary to complete each sexual battery. Therefore, notwithstanding the short interval of time involved here, wе believe each act is a separate criminal offense.
Appellant cites the case of Wade v. State, 368 So.2d 76 (Fla. 4th DCA 1979), as authority for his contention on this point. However, the opiniоn in Wade did not articulate the facts relied upon by the court in making its determination; and, therefore, we are unable to conclude whethеr the case is applicable to the factual situation before us.
In his third point, appellant asserts that the trial court erred in pronouncing sentence when the court had reasonable grounds to believe appellant was insane. At the sentencing hearing, counsel for appellant argued that based on the trial testimony and on the reports of the four court-appointed expеrts indicating appellant‘s permanent brain damage, the court should set a hearing to determine sanity pursuant to
[t]here is no evidence before me as of the present time that he does not understand the nature of these proceedings. He has been restored to his competency to stand trial[,] and I think that he is as competent as he presumes to hаve been during the course of the trial. He hasn‘t changed since he came back from Chattahoochee[,] and he was determined to be competent to stand trial and that he is still competent, not only to stand trial, but to stand before the Court during the course of this sentencing.
The record discloses that each doctor‘s testimony related to appellant‘s mental state at the time of the offеnse and at the time of the doctors’ original examinations of appellant, which had taken place months prior to the date of the sentencing hearing. In the absence of evidence indicating insanity at the time of sentencing, the trial judge is not required to order suсh an examination. Cabe v. State, 408 So.2d 694 (Fla. 1st DCA 1982), cert. denied, 435 So.2d 821
Finally, appellant contends, and correctly, that the trial court erred in imposing costs in light of the fact that he had been declared insolvent. See Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983),2 and W.R.P. v. State, 426 So.2d 1307 (Fla. 2d DCA 1983).
For the reasons stated herein, we AFFIRM the judgments and sentences but STRIKE the court costs imposed under
SCHEB and LEHAN, JJ., concur.