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Ramirez-Canales v. State

District Court of Appeal of Florida, Fourth District
Nov 17, 2010
46 So. 3d 1234 (Fla. Dist. Ct. App. 2010)

Summary

finding error in instructing the jury on attempted sexual battery where the evidence established and supported a verdict of guilt for the completed offense of sexual battery

Summary of this case from Morris v. State

Opinion

No. 4D09-615.

November 17, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T. Case No. 562008CF000036A.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.


Appellant, Angel Ramirez-Canales, was charged by amended information with two counts of sexual battery by a person in familial authority (Counts I and II) and one count of lewd molestation by a person in familial authority (Count III). He was convicted and sentenced to thirty years in prison on Counts I and III and fifteen years in prison on the lesser included offense of attempted sexual battery on Count II. This appeal concerns only his conviction and sentence on attempted sexual battery (Count II). We reverse on that count alone, because the trial court erred in instructing the jury on attempted sexual battery where the evidence established and supported a verdict of guilt for the completed offense of sexual battery. See Fla.R.Crim.P. 3.510(a) (providing, in pertinent part, that "[t]he judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense"). See also Gleason v. State, 591 So.2d 278, 279 (Fla. 5th DCA 1991) (holding that it "was error to charge the jury on attempted sexual battery when `. . . there was no evidence to support such attempt and the only evidence prove[d] a completed offense. `"(citations omitted)); Wilson v. State, 622 So.2d 31, 36 (Fla. 1st DCA 1993) (affirming the trial court's refusal to instruct the jury on the permissive lesser included offenses of attempted sexual battery and attempted lewd assault where the evidence called for a jury finding that the defendant either committed the completed offenses or none at all).

Because the trial judge granted a judgment of acquittal on the sexual battery charge in Count II when he reduced it to attempted sexual battery, double jeopardy protections preclude retrial for Count IPs original sexual battery charge. See Brock v. State, 954 So.2d 87, 88-89 (Fla. 1st DCA 2007).

Reversed and Remanded.

TAYLOR, HAZOURI and CIKLIN, JJ, concur.


Summaries of

Ramirez-Canales v. State

District Court of Appeal of Florida, Fourth District
Nov 17, 2010
46 So. 3d 1234 (Fla. Dist. Ct. App. 2010)

finding error in instructing the jury on attempted sexual battery where the evidence established and supported a verdict of guilt for the completed offense of sexual battery

Summary of this case from Morris v. State

finding error in instructing the jury on attempted sexual battery where the evidence established and supported a verdict of guilt for the completed offense of sexual battery

Summary of this case from Morris v. State
Case details for

Ramirez-Canales v. State

Case Details

Full title:Angel RAMIREZ-CANALES, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Fourth District

Date published: Nov 17, 2010

Citations

46 So. 3d 1234 (Fla. Dist. Ct. App. 2010)

Citing Cases

Morris v. State

In Brock, like the present case, "the evidence established either a completed sexual battery or no crime at…

Morris v. State

In Brock, like the present case, “the evidence established either a completed sexual battery or no crime at…