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464 So. 2d 1325

464 So.2d 1325

10 Fla.L.Weekly 704

Docket No. 84-1134.

Walker v. State

Isiah WALKER, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided March 14, 1985.

District Court of Appeal of Florida · decided 1985-03-14

Relies on Brown v. State · State v. Plachta · 441 So. 2d 691 - Harrielson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1985-03-14

How this case has been cited

Cited by 6 later decisions — most recently June 2003

6 state decisions

30198519902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*1326 James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3SHARP, Judge.

¶4Walker was charged by information with sexual battery on a person eleven years of age or younger.[1] The jury returned a guilty verdict and he was adjudicated and sentenced to life imprisonment. We affirm.

¶5Walker's sole issue on appeal is that the trial court erred in not giving the jury an instruction on lewd and lascivious assault,[2] as a lesser included offense of sexual battery. We have held that these two crimes contain different elements and that, therefore, lewd and lascivious assault is not a necessarily lesser included offense of sexual battery. Harrielson v. State, 441 So.2d 691 (Fla. 5th DCA 1983).

¶6Further, the information in this case simply alleges the commission of a sexual battery on the victim. Therefore, there is no basis to argue that the elements of lewd and lascivious assault were sufficiently alleged as to make it a permissibly included lesser offense[3] assuming that the "alleged evidence test" has any continued viability. Cf. S.L.S. v. State, 404 So.2d 1105 (Fla. 1st DCA 1981), rev. denied, 415 So.2d 1361 (Fla. 1982).

¶7AFFIRMED.

¶8DAUKSCH and ORFINGER, JJ., concur.

NOTES

¶9[1] § 794.011(2), Fla. Stat. (1983).

¶10[2] § 800.04, Fla. Stat. (1983).

¶11[3] The Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Florida Standard Jury Instructions in Criminal Cases, 257 (1981 ed.); see also Brown v. State, 206 So.2d 377, 383 (Fla. 1968).

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