FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D20-762
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HENRY JAMES WASHINGTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
Robert E. Long, Judge.
September 29, 2021
PER CURIAM.
Henry James Washington appeals the judgment and sentence
entered after a jury found him guilty of sexual battery on a victim
twelve years of age or older but younger than eighteen years of age.
We affirm Washington’s conviction of sexual battery on a victim
twelve years of age or older but younger than eighteen years of age,
but we reverse Washington’s sentence.
I.
The State charged Washington in February 2018, with capital
sexual battery on a victim less than twelve years of age. That
initial information alleged that Washington committed the offense
between January 1, 2012, and December 31, 2014. The day before
trial began in January 2020, the State filed an amended
information alleging the offense occurred between January 1,
2011, and August 15, 2014. It is undisputed that the victim turned
twelve years old on August 16, 2014. Given this, the narrower date
range in the amended information fell entirely before the victim
turned twelve. At trial, however, the evidence did not establish the
exact date the offense occurred. The victim testified that the
offense occurred when she was in sixth grade, but she could not
confirm whether she was eleven or twelve years old when it
happened.
The trial court instructed the jury on capital sexual battery
and, as a lesser included offense, sexual battery on a victim twelve
years of age or older but younger than eighteen years of age. The
jury found Washington guilty of this lesser included offense.
Ultimately, the trial court sentenced Washington to twenty years
in prison.
Washington’s counsel filed an Anders 1 brief. Following this
Court’s review of the record, as required by Anders, Causey 2, and
Florida Rule of Appellate Procedure 9.140(g)(2)(A), we directed the
parties to brief two issues: (1) whether the trial court committed
reversible error by entering a judgment and sentence for a first-
degree felony conviction under section 794.011(5), Florida
Statutes, when the version of the statute in effect at the time of
the offense classified the felony as second-degree, and (2) whether
the trial court committed reversible error by permitting sexual
battery defined by section 794.011(5)(a), Florida Statutes, to be
added as a lesser included offense of capital sexual battery, defined
by section 794.011(2)(a), Florida Statutes. As explained below,
reversal is required under the first issue, but not the second.
II.
The State properly concedes error on the first issue. It is
firmly established law that the statutes in effect at the time of
1 Anders v. California,
386 U.S. 738 (1967).
2 State v. Causey,
503 So. 2d 321 (Fla. 1987).
2
commission of a crime control as to the offenses for which the
perpetrator can be convicted. State v. Smith,
547 So. 2d 613, 616
(Fla. 1989). With limited exceptions, this principle also applies to
punishments which may be imposed. Id.; see also § 775.022(4), Fla.
Stat. (2020) (“If . . . punishment for a violation of a criminal statute
is reduced by a reenactment or an amendment of a criminal
statute, . . . the punishment, if not already imposed, must be
imposed according to the statute as amended.”). “If retroactive
application of a statutory amendment results in additional
punishment for a defendant, it violates the ex post facto clause” of
the United States and Florida Constitutions. Leftwich v. Dep’t of
Corr.,
148 So. 3d 79, 83 (Fla. 2014); see also Art. I, § 10, Fla. Const.;
Art. I, § 10, cl. 1, U.S. Const.
The State does not contest that Washington committed the
offense outlined in section 794.011(5)(a), Florida Statutes, when
the offense was classified as a second-degree felony. See
§ 794.011(5), Fla. Stat. (2013); Ch. 2002-211, § 8, at 7, Laws of Fla.
(Below, the State alleged in the amended information that the
offense occurred January 1, 2011, and August 15, 2014). However,
the trial court treated the offense as a first-degree felony, pursuant
to a 2014 amendment to section 794.011(5) that took effect October
1, 2014. See § 794.011(5), Fla. Stat. (2014); Ch. 2014-4, §§ 3, 18, at
5, 40, Laws of Fla. The trial court sentenced Washington to twenty
years in prison, over the fifteen-year maximum possible sentence
for a second-degree felony. See § 775.082(3)(c), Fla. Stat. (2013)
(current version at § 775.082(3)(d), Fla. Stat. (2020)). This
retroactive application of the amendment runs afoul of the ex post
facto clause of the state and federal constitutions. Because “[a]n
unpreserved error resulting in a sentence in excess of the statutory
maximum should be corrected on direct appeal as fundamental
error,” Maddox v. State,
760 So. 2d 89, 101 (Fla. 2000), we reverse
and remand to the trial court for resentencing in accordance with
section 794.011 at the time the offense was committed.
III.
Regarding the second issue—instructing the jury on sexual
battery upon a victim twelve years of age or older as a lesser
included offense of capital sexual battery—we affirm.
3
Because this issue was not raised and preserved in the trial
court, 3 we can provide relief only if fundamental error occurred.
See Baker v. State,
4 So. 3d 758, 760 (Fla. 1st DCA 2009). “An error
is ‘fundamental’ only when it is one that ‘goes to the foundation of
the case or the merits of the cause of action and is equivalent to a
denial of due process.’”
Id. (quoting J.B. v. State,
705 So. 2d 1376,
1378 (Fla. 1998)). Appellate courts have been cautioned to exercise
their discretion concerning fundamental error “very guardedly,”
and appellate courts should apply the fundamental error doctrine
“only in the rare cases where a jurisdictional error appears or
where the interests of justice present a compelling demand for its
application.” Ray v. State,
403 So. 2d 956, 960 (Fla. 1981); see also
State v. Dortch,
317 So. 3d 1074, 1081–82 (Fla. 2021) (“[A]
defendant has no constitutional due process right to the correction
3 In a recent case (where the issue was preserved), the Florida
Supreme Court held that sexual battery of a victim twelve or older
is not a necessarily lesser included offense to capital sexual
battery. Allen v. State, No. SC20-1053,
2021 WL 3927370 (Fla.
Sept. 2, 2021). Additionally, we note two things about the amended
information in this case. First, it only contemplated a victim under
twelve; it did not contemplate a victim twelve or older. Second, it
did not allege facts addressing lack of consent, one of the statutory
elements of sexual battery upon a person 12 years of age or older.
See § 794.011(5)(a), Fla. Stat. (2014) (“A person 18 years of age or
older who commits sexual battery upon a person 12 years of age or
older but younger than 18 years of age, without that person’s
consent, and in the process does not use physical force and violence
likely to cause serious personal injury commits a felony of the first
degree, . . . .” (emphasis added)). Thus, the facts alleged in the
accusatory pleadings were not such that the lesser included offense
cannot help but be perpetrated once the greater offense has been.
See Sanders v. State,
944 So. 2d 203, 206 (Fla. 2006) (“A permissive
lesser included offense exists when ‘the two offenses appear to be
separate [on the face of the statutes], but the facts alleged in the
accusatory pleadings are such that the lesser [included] offense
cannot help but be perpetrated once the greater offense has been.’”
(citation omitted)).
4
of unpreserved error.”); Knight v. State,
286 So. 3d 147, 151 (Fla.
2019).
Contrary to Washington’s contention, when a trial court
erroneously instructs the jury on a lesser included offense, the
error is not necessarily fundamental. See Ray,
403 So. 2d at 960–
61; see also Nesbitt v. State,
889 So. 2d 801, 803 (Fla. 2004). This
is true even when a defendant is convicted for the erroneously
instructed lesser included offense. See Nesbitt,
889 So. 2d at 803;
Ray,
403 So. 2d at 960. The Florida Supreme Court has long held:
[I]t is not fundamental error to convict a defendant under
an erroneous lesser included charge when he had an
opportunity to object to the charge and failed to do so if:
1) the improperly charged offense is lesser in degree and
penalty than the main offense or 2) defense counsel
requested the improper charge or relied on the charge as
evidenced by argument to the jury or other affirmative
action.
Nesbitt,
889 So. 2d at 803 (quoting Ray,
403 So. 2d at 961)); see also
Graham v. State,
100 So. 3d 755, 757 (Fla. 1st DCA 2012) (“Under
controlling authority, however, because aggravated battery is
lesser in degree and penalty than attempted first-degree murder,
the trial court’s error is not fundamental.” (citing Nesbitt,
889 So.
2d at 803)).
The record reflects that Washington had ample opportunity to
object to the lesser charge but failed to do so. In fact, the trial court
specifically inquired of Washington’s counsel whether he had an
objection to the instruction concerning sexual battery upon a
victim twelve years of age or older, and he unequivocally stated
that he had no objection. Additionally, sexual battery upon a
victim twelve years of age or older but under eighteen years of age
is, and was at the time the offense was committed, lesser in degree
and penalty than the sexual battery charged (sexual battery upon
a victim less than twelve years of age). Accordingly, under Ray and
5
its progeny, even if the instruction were erroneous, no
fundamental error has been shown. 4
AFFIRMED, in part, REVERSED in part, and REMANDED for
resentencing consistent with this opinion.
ROWE, C.J., and M.K. THOMAS and NORDBY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel,
and Melissa Joy Ford, Assistant Regional Conflict Counsel,
Tallahassee, for Appellant.
Ashley Moody, Attorney General, and David Welch, Assistant
Attorney General, Tallahassee, for Appellee.
4 Washington argues the trial court committed fundamental
error because sexual battery of a person twelve years or older can
never be a lesser included offense of capital sexual battery of a
person under twelve years as opposed to the scenario laid out in
both Ray and Nesbitt, where the lesser offenses were offenses that
could, under certain circumstances, be lesser included offenses
(i.e., permissive or necessary lesser included offenses). The Florida
Supreme Court in Ray only required the lesser offenses be
erroneous and lesser in degree and penalty. Ray and its progeny
have made no distinction between erroneously instructed lesser
offenses that could never be classified as permissive or necessary
lesser included offenses and those that could.
6
