Harris v. StateHarris v. State
Jimmy L. Harris was charged in a three count information with I breaking and entering a dwelling and unlawfully assaulting a person therein, II involuntary sexual battery in violation of
Two points are raised on appeal. The first point is that the court erred in denying the defendant‘s request for an instruction pursuant to
In Brown v. State, 206 So.2d 377 (Fla. 1968), the leading Florida case, Justice Thornall set out four categories of lesser included offenses: (1) crimes divisible into degrees; (2) attempts to commit offenses; (3) offenses necessarily included in the offense charged; and (4) offenses which may or may not be included in the offense charged depending on the accusatory pleading and the evidence. Clearly, in this case, we are not concerned with the first or second categories. Therefore, we must determine whether
Subsection 3 of
A person who commits sexual battery upon a person over the age of 11 years, without that person‘s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony . . (Emphasis supplied)
Subsection 5, which Harris contends is a lesser included offense of
A person who commits sexual battery upon a person over the age of 11 years, without that person‘s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree ... (Emphasis supplied)
The record reflects that during the involuntary sexual battery, the defendant held a knife or a metal object similar to a knife with a very sharp blade, to the victim‘s neck.
A necessarily included offense under the third category must be an essential aspect of the major offense, such that the burden of proof of the major crime cannot be discharged without proving the lesser crime as an essential link in the chain of evidence. Brown v. State, supra, at 381, 382. Instructing on an offense in this category
We next consider whether subsection 5 may be classified in the fourth category as an offense which may or may not be included in the offense charged depending on the accusatory pleading and the evidence. The information charges Harris with involuntary sexual battery, and in the process, using “a deadly weapon, to wit: A KNIFE, RAZOR, or similar object.” The element of actual physical force whether likely or not to cause serious physical injury is totally lacking from the charging instrument. A defendant may be convicted of a lesser offense, which, although not an essential ingredient of the major crime, is spelled out in the accusatory pleading in that it alleges all of the elements of the lesser offense and the proof at trial supports the charge. State v. Anderson, 270 So.2d 353, 356 (Fla. 1972); and see Gilford v. State, 313 So.2d 729 (Fla. 1975). In this case, the element of actual physical force, a necessary element of subsection 5 is not alleged in the information; it was not necessary for the State to prove it, and it was not proved. Accordingly, neither the allegata nor the probata supported a charge to the jury on subsection 5 as a lesser included offense, and the requested instruction was properly refused.
The second point raised on appeal is that the court erred in imposing consecutive sentences on counts I and II where both stem from the same criminal transaction. Where an information contains more than one count, but each is a facet or phase of the same transaction, only one sentence may be imposed; and the sentence which should be imposed is for the highest offense charged. Yost v. State, 243 So.2d 469, 471 (Fla.3rd DCA 1971). Where, as here, however, the offenses are violations of separate statutes, and not different sections of the same statute, although committed in one criminal episode, the Yost principle is not applicable. A separate sentence may be imposed upon conviction of each separate offense. Steele v. Mayo, 72 So.2d 386 (Fla. 1954); Tarpley v. State, 258 So.2d 301 (Fla.3rd DCA 1972); Estevez v. State, 313 So.2d 692 (Fla. 1975). Therefore, we find no error on this point.
Affirmed.