5D10-4223 State v. Roberto Rosario

State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-4223

Case Date: 01/23/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

STATE OF FLORIDA, Appellant, v. ROBERTO ROSARIO, Appellee. ________________________________/ Opinion filed January 27, 2012 Appeal from the Circuit Court for Volusia County, Patrick Kennedy, Judge. Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant. No Appearance for Appellee. Case No. 5D10-4223

PER CURIAM. The State appeals the Order vacating a jury verdict that found Roberto Rosario to be guilty of sexual battery on a physically helpless person in violation of section 794.011(4)(a), Florida Statutes (2008). Rosario has not filed an answer brief. We reverse the Order because the jury verdict finding that Rosario did commit a sexual battery on the victim was not based on an erroneous jury instruction. See State v. Pate,

656 So. 2d 1323, 1325 (Fla. 5th DCA 1995) (holding that pursuant to the definition of sexual battery in section 794.011(1)(h), Florida Statutes, "the state is not required to prove penetration in order to establish a sexual battery. Rather, `oral . . . union with, the sexual organ of another . . .' constitutes sexual battery" (quoting

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