Jury instructions are important in any criminal case. They’re particularly critical in cases in which a jury is tasked with deciding whether a person committed a felony or a related misdemeanor offense instead. A recent case out of Florida’s Supreme Court makes clear that judges don’t have the right to simply choose not to tell a jury that a person facing felony charges could instead be convicted of a misdemeanor.F.W. was charged with various crimes related to his alleged molestation of three boys over an 11-year period from 2000 to 2011. At trial, all three boys testified that F.W. touched their genitals, and one victim testified that F.W. put the victim’s penis in his mouth. At the close of trial, the judge instructed the jury on the various crimes with which F.W. had been charged. The judge did not, however, tell the jury about the crime of offense of unnatural and lascivious act, a second degree misdemeanor.
F.W. was eventually convicted of two counts of lewd or lascivious molestation against a victim less than twelve years old, three counts of lewd or lascivious molestation against a victim between twelve and sixteen years old, and one count of lewd or lascivious battery against a victim less than sixteen years old. He was sentenced to life in prison. The Second District Court of Appeal later affirmed the conviction, rejecting F.W.’s claim that the judge should have allowed the jury to consider convicting him of the lesser offense of unnatural and lascivious act.
The Florida Supreme Court sided with F.W. on further appeal. The court said F.W. was entitled to have the jury instructed on the lesser offense because it included all of the elements of the other crimes with which he was charged.
“Invariably, when the sexual conduct alleged did not include sexual intercourse, Florida courts have held that the offense of committing an unnatural and lascivious act is a category two permissive lesser included offense of both lewd or lascivious molestation and lewd or lascivious battery,” the Court explained. Here, the court noted that there was no allegation that F.W. had sexual intercourse with any of his victims. The trial judge did not have the discretion to decline to instruct the jury on the unnatural and lascivious act offense, the court said.
As a result, the court sent the case back to the trial judge with instructions to scrap the conviction and schedule a new trial.
If you or a loved one has been charged with a sex crime in Florida, it is essential that you seek the advice and counsel of an experienced lawyer. St. Petersburg sex crime attorney Will Hanlon is a seasoned lawyer who fights aggressively on behalf of clients charged with a wide range of offenses. Call our offices at (727) 897-5413 or contact us online to speak with Mr. Hanlon about your case.
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