FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Robert Branning,
L. Dimmig, II, Public Defender, and Joanna Beth Conner,
Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Kelly O'Neill,
Assistant Attorney General, Tampa, for Appellee.
appeals an order finding him delinquent of lewd or lascivious
conduct. We have jurisdiction. See Fla. R. App. P.
9.030(b)(1)(A); 9.145(b)(1). The State charged J.F. with
attempted sexual battery on a child less than twelve years of
age. Because lewd or lascivious conduct is not a lesser
included offense of the charged crime, we reverse.
amended delinquency petition, the State alleged that J.F.
committed the delinquent act of attempted sexual battery on a
child less than twelve years of age, a second-degree felony.
§§ 794.011(2)(b), Fla. Stat. (2015) ("A person
less than 18 years of age who commits sexual battery upon . .
. a person less than 12 years of age commits a life
felony."); 777.04(4)(c), Fla. Stat. (2015) ("[I]f
the offense attempted . . . is a life felony . . . the
offense of criminal attempt . . . is a felony of the second
degree . . . .").
parties presented conflicting evidence at the adjudicatory
hearing. The victim testified that while she was retrieving
clothes from her room, J.F. entered the room, pushed her face
down on the bed, pushed his hand down on her back, pulled her
underwear down, and told her, "Don't move, it
won't go in." The victim described J.F.'s
"private area" touching her "private area . .
. in the back." An analysis of T.M.'s underwear
uncovered epithelial and sperm DNA. J.F. was not the source.
denied assaulting, much less touching, anyone. He stated that
he was watching a movie in the victim's bedroom; she
entered and told him she had to grab some clothes. "So
like, you know, her being a girl I didn't want to see
like the stuff that she was grabbing or whatever like her
[purse] and stuff, so it's like I'm going to get up
and turn my back."
J.F. and the victim were alone for somewhere between two and
five minutes. The victim's mother then entered the room;
J.F. went into a closet and the victim ran to the bathroom.
conclusion of the hearing, the trial court ruled as follows:
Okay. The allegation, the charge that's been made is
sexual assault by a person under the age of 18 against a
victim under the age of 12. . . . [I]t's interesting that
there are places where both sides, State and Defense, agree
on points, and obviously they disagree on others.
[T]he victim . . . did testify, and based on the questions
that we heard in court, and the cross-examination that had to
occur, that her testimony has been in summary consistent with
her testimony with CPT, ...