5D10-2863 State v. Gilbert Dudley

State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-2863

Case Date: 06/27/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

STATE OF FLORIDA, Appellant, v. GILBERT DUDLEY, III, Appellee. ________________________________/ Opinion filed July 1, 2011 Appeal from the Circuit Court for Volusia County, Charles M. Harris, Senior Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant. Clyde M. Taylor, III, of Taylor & Taylor, PA, St. Augustine, for Appellee. CASE NO. 5D10-2863

EN BANC LAWSON, J. The State timely appeals a final order setting aside the jury's guilty verdicts against Gilbert Dudley, III, and dismissing the charges against him. We reverse and remand with directions that the verdicts be reinstated and that the court proceed to sentencing. To the extent that this opinion is inconsistent with our prior panel decision in State v. Torresgrossa, 776 So. 2d 1009 (Fla. 5th DCA 2001), we recede from

Torresgrossa. We also certify conflict with the First District's decision in Mathis v. State, 682 So. 2d 175 (Fla. 1st DCA 1996). The State charged Dudley with two counts of sexual battery on a mentally defective person. In count I, the State alleged that on or about March 21, 2008, the Defendant penetrated or had union with the victim's vagina or anus. In count II, the State alleged that in 2007 the Defendant penetrated or had union with the victim's vagina or mouth. Both counts alleged that the victim was mentally defective, and that Dudley had reason to believe or had actual knowledge that the victim was mentally defective. See

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