IN THE SUPREME COURT OF THE STATE OF FLORIDA ROBERT C. BLACKBURN, ) ) Appellant/Petitioner, ) Supreme Court Case No. ) SC 00-1681 vs. ) ) STATE OF FLORIDA, ) 5 th DCA Case No. ) 5D 99-1512 Appellee/Respondent. ) ) APPEAL FROM THE DISTRICT COURT OF APPEAL, FIFTH DISTRICT PETITIONERS BRIEF ON THE MERITS JAMES B. GIBSON PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT NOEL A. PELELLA ASSISTANT PUBLIC DEFENDER FLORIDA BAR NO. 0396664 112 Orange Ave., Suite A Daytona Beach, FL 32114 (904) 252-3367 COUNSEL FOR PETITIONER
TABLE OF CONTENTS PAGE NO. TABLE OF CONTENTS TABLE OF CITATIONS i ii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF ARGUMENT 3 ARGUMENT 4 THE IMPOSITION OF VICTIM INJURY POINTS UNDER 921.0011(7)(b)(2) FLA. STAT. (1997), IS LIMITED TO CASES OF SEXUAL BATTERY UNDER 794.011(1)(h), WHERE SEXUAL CONTACT IS DEFINED AS UNION WITH OR PENETRATION ; AND THEREFORE, LEWD AND LASCIVIOUS CONDUCT AS DEFINED BY 800.04(1) FLA. STAT. (1997), OCCURRING WHEN BOTH THE VICTIM AND PERPETRATOR ARE FULLY CLOTHED, IS NOT SEX CONTACT UNDER 921.0011(7)(b)(2). CONCLUSION 8 CERTIFICATE OF SERVICE 9 CERTIFICATE OF FONT 9 i
TABLE OF CITATIONS CASES CITED: PAGE NO. Forsythe v. Longboat Key Beach Erosion Control Dist. 604 So.2d 452,455 (Fla. 1992) 6 Hausen v. State 730 So. 2d 327 (Fla. 5 th DCA 1999) 5, 7 Kitts v. State 25 Fla. L. Weekly D 1102 (Fla. 5 th DCA 5/5/00) 2, 5-7 Racetrac Petroleum Inc. v. Delco Oil Inc. 721 So. 2d 376 (5th DCA 1998) 4 Reyes v. State 709 So.2d 181 (Fla. 5th DCA 1998) 2, 4-6 Rollins v. Pizzarelli 25 Fla. L. Weekly S331,332 (Fla. 5-4-00) 6 Scates v. State 603 So.2d 504,505 (Fla.1992) 7 Spioch v. State 742 So. 2d 817 (Fla. 5th DCA 1999) 2, 5-7 OTHER AUTHORITIES CITED: Section 775.021, Florida Statutes (1997) 7 Section 794.011, Florida Statutes 3-5, 7 Section 800.04, Florida Statutes (1997) 1, 3-5, 7 Section 921.0011(7), Florida Statutes (1997) 1, 3, 4, 7 ii
IN THE SUPREME COURT OF THE STATE OF FLORIDA ROBERT C. BLACKBURN, ) ) Appellant/Petitioner, ) Supreme Court Case No. ) SC 00-1681 vs. ) ) STATE OF FLORIDA, ) 5 th DCA Case No. ) 5D 99-1512 Appellee/Respondent. ) ) STATEMENT OF THE CASE AND FACTS On June 23, 2000, the Fifth District Court issued an Opinion 1 in this matter; affirming the Petitioner s conviction and sentence for the offense of a lewd and lascivious act upon a child; a violation of 800.04 Fla. Stat. (1997). The Petitioner filed a Notice to Invoke the discretionary jurisdiction of this Court, accompanied by a jurisdictional brief. On December 8, 2000, this Court issued an Order Accepting Jurisdiction and Dispensing with Oral Argument. In his appeal to the district court, the Petitioner argued that the trial court erred by scoring 40 points for victim injury under 921.0011(7), Fla. Stat. (1997), based on sexual contact. The argument in the district court was founded upon 1 The Opinion is included in the Appendix to this brief. References to the Appendix will be designated by the symbol A. 1
the Petitioner s averment that conduct which does not include actual union or penetration is not sexual contact. (A 1,2) The evidence presented at trial, according to the district court s Opinion, showed that the contact here was between two fully clothed persons - the Petitioner s sexual organ did not make actual contact with the victim. (A - 1) The district court s Opinion states that it was compelled, by the its recent decision in Kitts v. State, 25 Fla. L. Weekly D 1102 (Fla. 5 th DCA 5/5/00), to affirm the assessment of victim injury points in this case. (A 2) The district court, in the instant case, as in Kitts, specifically receded from its prior decisions in Reyes v. State, 709 So.2d 181 (Fla. 5th DCA 1998), and Spioch v. State, 742 So. 2d 817 (Fla. 5th DCA 1999), (review pending in Fla. Supreme Ct. Case No. 96-836), saying that the Reyes and Spioch were in conflict with Kitts. (A 2) The Spioch decision is presently before this Court for review: Spioch, Fla. S. Ct. Case No. 96-836. The Petitioner/Appellant in Kitts has sought to invoke this Court s discretionary review as well: (See Fla. S. Ct. Case # SC00-1863) 2
SUMMARY OF ARGUMENT Petitioner submits that related statutes, (in this case, 794.011; 921.0011(7) and 800.04), must be read in pare materia, because a definition of the operative term sexual contact is absent from 800.04, and 921.0011(7). Chapter 794 indicates that union must occur if a particular act is to be deemed sexual contact. Because there was, in this case, no actual contact or union as defined by the sexual battery statute, there was no legal basis for assessment of 40 points for victim injury on the Petitioner s sentencing guideline scoresheet. 3
ARGUMENT THE IMPOSITION OF VICTIM INJURY POINTS UNDER 921.0011(7)(b)(2) FLA. STAT. (1997), IS LIMITED TO CASES OF SEXUAL BATTERY UNDER 794.011(1)(h), WHERE SEXUAL CONTACT IS DEFINED AS UNION WITH OR PENETRATION ; AND THEREFORE, LEWD AND LASCIVIOUS CONDUCT AS DEFINED BY 800.04(1) FLA. STAT. (1997), OCCURRING WHEN BOTH THE VICTIM AND PERPETRATOR ARE FULLY CLOTHED, IS NOT SEX CONTACT UNDER 921.0011(7) (b)(2). The de novo standard of review should be applied in this case, as the issue on appeal is one of statutory construction, and the operative facts are undisputed. Racetrac Petroleum Inc. v. Delco Oil Inc., 721 So. 2d 376 (5th DCA 1998). In 1998, the Fifth District Court ruled that the defendant s scoresheet could not include the assessment of victim injury points for sex contact, where the conduct at issue was defendant s fondling of a female breast and making of a sexually suggestive comment. Reyes v. State, 709 So. 2d 181,182 (Fla. 5 th DCA 1998) The district court, in Reyes, indicated the following basis for its ruling: Shortly after Karchesky, the legislature enacted a statute which provided that for crimes of Chapter 794 (sexual battery), chapter 800 (lewdness, including statutory rape), and section 826.04 (incest), which involve sexual penetration, the points indicated for penetration or slight injury on the scoresheet shall be added, and that for such crimes which do not include 4
sexual penetration but do include sexual contact, points must be added for "contact but no penetration." See 921.001(8), Fla. Stat. (Supp.1992). The legislature, in requiring points for sexual contact in this original statute as well as its successor, the one at issue, appears to be referring only to the contact occurring in a sexual battery by union without penetration. In Spioch v. State, 742 So. 2d 817,818 (Fla. 5 th DCA 1999) the Fifth District Court concluded that fondling of the victim's penis through the victim's clothing constituted neither penetration nor union, so the trial court had incorrectly assessed victim injury points. Court held: In Hausen v. State, 730 So. 2d 327 (Fla. 5 th DCA 1999), the Fifth District As now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive. Thus, even before its decision in Kitts, - before receding from Spioch and Reyes - the Fifth District Court recognized that 794.011(h), (the sexual battery statute), and 800.04, (the statute proscribing lewd and lascivious acts with 5
children), are by necessity interrelated. The definition of sexual conduct under 800.04 cannot be determined without reference to 794.011. This sort of collective interpretation of statutory terms is not unprecedented; it is an essential element of statutory construction; succinctly phrased by this Court as follows: It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. [...] Every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts. (Citations omitted) Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452,455 (Fla. 1992) More specifically, this Court has stated that the same meaning should be given to the same term within subsections of the same statute. Rollins v. Pizzarelli, 25 Fla. L. Weekly S331,332 (Fla. 5-4-00). Given the aforesaid tenets of statutory construction, it appears that even the Kitts decision 2, in which the Fifth District Court receded from Reyes and Spioch, does not support the assessment of points for sex contact in cases where the facts show that both the perpetrator and the 2 Kitts v. State, 25 Fla. L. Weekly D 1102 (Fla. 5 th DCA 5/5/00) 6
victim were fully clothed. That is, the Fifth District Court, in Kitts, conceded that there is nothing in the case law or the statutes which expressly defines sexual contact. After Reyes, Spioch, and Hausen, the Kitts decision amounts to an acknowledgment by the district court that the terms sex contact, as they appear on the sentencing guidelines scoresheet, can be defined only by reading Chapters 921.0011; 794 and 800 in pare materia. The Fifth District Court has thus all but mandated application of the doctrine of statutory construction which requires a collective reading of inter-related statutes. Petitioner submits that when Sections 794.011 and 800.04 are so construed, the appropriate resolution of the issue presented in the instant case is as follows: An act which does not include sexual battery or actual contact between the victim and the perpetrator, cannot be called sexual contact for the purpose of assessing victim injury points under Section 921.0011(7)(b) of the Florida Statutes. This conclusion is supported by application of the rule of lenity; i.e. 775.021 Fla. Stat. (1997), ("When [statutory] language is susceptible of differing constructions, it shall be construed most favorably to the accused."), See, Scates v. State, 603 So.2d 504,505 (Fla.1992) In the instant case, sexual battery was neither charged nor proven. There was no union between the defendant s sexual organ and the victim. Thus, victim 7
injury points were erroneously assessed. 8
CONCLUSION Based upon the foregoing arguments, and the authorities cited therein, the Petitioner respectfully requests that this Court reverse the decision of the district court, vacate the sentence imposed by the trial court, and remand this case to the trial court for correction of sentence; with instructions that the scoresheet shall be re-calculated, deleting the 40 points previously scored for victim injury, thus reducing the total score by 40 points. Respectfully submitted, JAMES B. GIBSON PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT NOEL A. PELELLA ASSISTANT PUBLIC DEFENDER FLORIDA BAR NO. 0396664 112 Orange Avenue, Suite A Daytona Beach, FL 32114 Phone: 904/252-3367 COUNSEL FOR RESPONDENT 9
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been delivered to the Honorable Robert Butterworth, Attorney General, 444 Seabreeze Blvd., Fifth Floor, Daytona Beach, FL 32118, and mailed to: Mr. Robert C. Blackburn, DC# 554592, Gulf Correctional Institution, 500 Ike Steele Road, Wewahitchka, Florida 32465-0130, on this day of January, 2001. NOEL A. PELELLA ASSISTANT PUBLIC DEFENDER CERTIFICATE OF FONT I hereby certify that the size and style of type used in this brief is point proportionally spaced Times New Roman, 14 pt. NOEL A. PELELLA ASSISTANT PUBLIC DEFENDER 10
IN THE SUPREME COURT OF THE STATE OF FLORIDA ROBERT C. BLACKBURN, ) ) Appellant/Petitioner, ) Supreme Court Case No. ) SC 00-1681 vs. ) ) STATE OF FLORIDA, ) 5 th DCA Case No. ) 5D 99-1512 Appellee/Respondent. ) ) APPENDIX