ROBINSON v. STATE (2022)

Larry B. Robinson was convicted of multiple offenses after a jury trial. Included among those offenses were sexual battery on a child over twelve years of age by a defendant eighteen years of age or older (a lesser offense of count 2 of the amended information), lewd and lascivious molestation of a child less than 12 years of age (a lesser offense of count 3 of the amended information), and sexual battery by a person in familial or custodial authority (count 4 of the amended information). While he challenges the convictions for counts 2 and 3, we affirm as any error in instructing the jury on the lesser offenses was not fundamental. See Washington v. State, 328 So. 3d 364, 368 (Fla. 1st DCA 2021) (citing Nesbitt v. State, 889 So. 2d 801, 803 (Fla. 2004)) (explaining it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had a chance to object and failed to do so when the improperly charged offense is lesser in degree and penalty than the main offense or defense counsel requested the improper charge or relied on the charge). Furthermore, any error in the jury instruction on the lesser included charges was invited. See Morris v. State, 658 So. 2d 155, 156 (Fla. 1st DCA 1995); see also Delvalle v. State, 653 So. 2d 1078, 1079 (Fla. 5th DCA 1995).

However, the judgment of conviction did erroneously classify count 2 as a first degree felony and count 4 as a first degree felony punishable by life. The State concedes error, and we accept the concession. Under the statutory law in effect during the time count 2 was committed, sexual battery on a child over twelve years of age by a defendant eighteen years of age or older without physical force or violence likely to cause serious personal injury was a second degree felony. See § 794.011(5), Fla. Stat. (2011). Thus, the classification of count 2 as a first degree felony was error.¹

Moreover, the thirty-year sentence imposed for count 2 exceeds the statutory maximum of fifteen years’ imprisonment for a second degree felony. See § 775.082(3)(c), Fla. Stat. (2011). It is well-established that a defendant is to be sentenced in accordance with the statutory law in effect at the time the offense was committed. See Washington, 328 So. 3d at 367; Leftwich v. Dep't of Corr., 148 So. 3d 79, 83 (Fla. 2014). As a result, while we affirm the conviction, we vacate the thirty-year sentence for count 2, and remand for correction of the judgment and for resentencing.

Similarly, the conviction for count 4 (sexual battery on a child between twelve and eighteen years of age by a person in familial or custodial authority) was erroneously classified on the judgment as a first degree felony punishable by life. At the time of the commission of the offense, section 794.011(8)(b) was a first degree felony, not a first degree felony punishable by life.² Thus, we affirm the conviction for count 4, but we vacate that sentence and remand for correction of the judgment and for resentencing.

Finally, the scoresheet erroneously shows that Robinson did not go to trial. It also contains the erroneous classifications of the offenses for counts 2 and 4. On remand, these errors are to be corrected.

Affirmed in part, Reversed in part, and Remanded.

FOOTNOTES

1.   In 2014, well after Robinson's offenses were committed, subsection 794.011(5) was amended to provide that the offense of sexual battery on a child over twelve years of age by a defendant eighteen years of age or older is a first degree felony. The 2014 amendment divided the existing statute into two sections, (a) and (b). Subsection (a) provides that it is a first degree felony when a person eighteen years of age or older commits a sexual battery on a child over twelve years of age but less than eighteen years without the use of physical force and violence likely to cause serious personal injury. Subsection (b) provides that it is a second degree felony for a person eighteen years of age or older to commit sexual battery on a person eighteen years or older without the use of physical force and violence likely to cause serious personal injury. See Ch. 2014-4, § 3, Laws of Florida.

2.   In 2014, subsection 794.011(8)(b) was amended to provide that this offense is now a first degree felony punishable by life. See Ch. 2014-4, § 3, Laws of Florida.

Bilbrey, J.

Makar and Kelsey, JJ., concur.