5D05-1398 Leon Jackson v.State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-1398

Case Date: 02/06/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

LEON OLIVER JACKSON, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 10, 2006 Case No. 5D05-1398

Appeal from the Circuit Court for Volusia County, Robert K. Mathis, Judge. James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, C.J. The defendant appeals from his convictions and sentences for lewd and lascivious battery and interference with child custody. His sole point on appeal relates to the denial of his requested jury instruction on simple battery as a lesser included offense of lewd and lascivious battery. Because decisional law dictates that this

instruction should have been given, we are obligated to reverse for a new trial on the lewd and lascivious battery charge. The trial court declined to give the lesser charge on simple battery explaining that based on the victim's own testimony, there was no evidence that anything that occurred was against her will. Defense counsel repeatedly requested the lesser be given but was unable to articulate precisely why the instruction on battery should be given. 1 First degree misdemeanor battery is a category two, permissive lesser included offense of lewd and lascivious battery, the crime proscribed by section 800.04(4)(a) and charged in Count II of the amended information. Sherrer v. State , 898 So. 2d 260 (Fla. 1st DCA 2005); Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses,

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