WEAVER v. STATE (2020)

Appellant raises numerous issues on appeal regarding his conviction for five counts of sexual battery upon a person less than twelve years of age. The second and third issues we affirm without comment.^* In Appellant’s first issue he claims the trial court committed per se reversible error when it failed to instruct the jury on the lesser included offense of lewd or lascivious battery. However, in Knight v. State, 286 So.3d 147, 2019 WL 6904690 (Fla. Dec. 19, 2019), the Florida Supreme Court recently receded from prior precedent and now rejects recognition of a fundamental right to jury instructions that facilitate partial jury nullification. Thus, instruction error is no longer considered per se reversible. Rather, where there is no error in the jury instruction on the offense of conviction, and the evidence supports that conviction, the defendant’s judgment must be affirmed. Id. Here, there was no error in the sexual battery jury instruction, and sufficient evidence was presented to support Appellant’s conviction. Accordingly, we AFFIRM appellant’s judgment and sentence.

FOOTNOTES

FOOTNOTE.   The second and third issues raised on appeal are whether the trial court erred in admitting collateral crime evidence and denying his motion for mistrial due to prosecutor comments in closing argument.

M.K. Thomas, J.

Rowe and Jay, JJ., concur.