SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2023-0235 Lower Tribunal No. CF17-529 _____________________________
ROBERT WAYNE LINCOLN,
Appellant, v.
STATE OF FLORIDA,
Appellee. _____________________________
Appeal from the Circuit Court for Highlands County. Peter F. Estrada, Judge.
December 30, 2024
STARGEL, J.
Robert Wayne Lincoln appeals his judgment and sentence for lewd
molestation. 1 While Lincoln challenges several of the trial court’s rulings, we find
merit only in the claim that his judgment and sentence for the crime of lewd
molestation under section 800.04(5)(b), Florida Statutes (2021), against a victim less
1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. than twelve years of age, was improper. Lincoln was sentenced to life in prison
under section 800.04(5)(b), which required a jury finding that the victim was less
than twelve years of age. There was no such finding in this case, however, and the
evidence showed the victim turned twelve before the date of the offense. In fact, the
jury was only instructed on lewd molestation on a victim twelve or older, but less
than sixteen years of age, which is a second-degree felony under section
800.04(5)(c)2. The State concedes error on this point.
We now reverse and remand for the trial court to vacate the judgment for lewd
molestation as a first-degree felony under section 800.04(5)(b). Since the jury was
properly instructed under section 800.04(c)2 and found Lincoln guilty of that
offense, on remand, the trial court should enter judgment for that offense, obtain a
corrected scoresheet and pre-sentence investigation, and resentence Lincoln on the
second-degree felony of lewd molestation.
Background
Lincoln was charged with lewd molestation for intentionally touching his
step-granddaughter in a lewd or lascivious manner when he put his hands inside the
bottoms of her two-piece bathing suit while swimming in the pool at his home. The
amended information charged that Lincoln committed the offense against “a child
2 under 12 years of age, contrary to Florida Statutes 800.04” and included the
notations “(LIFE FEL) (LEVEL 9).”2
The facts regarding the victim’s age at the time of the offense are not in
dispute. The State began its opening statement at trial by informing the jury, “[i]n
the summer of 2013, [the victim] was twelve years old. She was at her Nana and
Grandpa Bob’s house swimming in their pool.” The victim testified on direct
examination that she had just turned twelve when the incident occurred. She further
testified that it was the summer of 2013, and when asked how old she would have
been, she again testified she was twelve. On redirect, she was once again asked how
old she was when this happened and she answered, “eleven, and I would have turned
twelve.” The State’s argument opposing the defense’s motion for judgment of
acquittal included a reference to the victim being twelve years old, and the closing
argument is replete with references to the victim being a twelve-year-old child.
There was no evidence at trial of the victim being under twelve. In fact, at the
charge conference, the parties agreed to the jury instructions and verdict form, both
of which contained only the lesser included offense of lewd molestation on a victim
2 The dates included in the amended information for the alleged lewd molestation were between May 1, 2013, and June 15, 2017, leaving only a ten-day period at the beginning of that timeframe before the victim would have turned twelve on May 10, 2013.
3 twelve years of age or older, but less than sixteen years of age, a second-degree
felony.3 That agreed-upon jury instruction provided as follows:
To prove the crime of lewd or lascivious molestation, the State must prove the following three elements beyond a reasonable doubt:
1. Robert Lincoln, in a lewd or lascivious manner, intentionally touched the genitals or genital area of [victim].
2. At the time of the offense, [victim] was 12 years of age or older but less than 16 years of age.
3. At the time of the offense, Robert Lincoln was 18 years of age or older.
The words “lewd” and “lascivious” mean the same thing: a wicked, lustful, unchaste, licentious or sensual intent on the part of the person doing an act.
At the conclusion of trial, the court informed Lincoln that the jury “found you
to be guilty of lewd molestation,” and “found you had sexual contact with the
victim.” It then adjudicated Lincoln “guilty of these offenses” without any
indication as to whether he would be convicted of a first-degree or second-degree
felony. Apparently, this is where the error began. Instead of reflecting the lesser
offense on which the jury was instructed and on which it convicted, the Clerk of
Court Disposition Memorandum, which still showed the original charge pre-printed
at the top of the form, contained a check mark next to “jury verdict” with the hand-
3 The only lesser-included offenses discussed by the parties and included on the verdict form were for battery under section 784.03, and for an unnatural or lascivious act under section 800.02, both category two lesser-included offenses.
4 written notation: “Guilty as charged.” The Jury Trial Progress Report also reflected
the verdict as guilty as charged. The issue was not raised to the trial court by the
State or defense, and sentencing was set out six weeks for a Florida Department of
Corrections Pre-Sentence Investigation (PSI) to be prepared.
Ultimately, the PSI was prepared based on the information provided by the
trial court and, like the other trial court documents, erroneously reflected that
Lincoln was found guilty as charged of lewd molestation as a first-degree felony
punishable by life. At the sentencing hearing, the State argued for life in prison in
accordance with that charge, notwithstanding its argument during the hearing that
the victim was twelve at the time of the offense. The defense argued mitigating
factors and requested leniency but did not bring the error in the PSI or scoresheet to
the court’s attention. No one addressed the error, and the trial judge sentenced
Lincoln to life in prison.
Law and Analysis
I. Fundamental Error
First, we must address the failure to preserve the error for review. There was
no contemporaneous objection to the jury instructions at trial, nor was there any
objection to the sentence imposed for the first-degree felony, so our review is for
fundamental error. See State v. Delva, 575 So. 2d 643, 644 (Fla. 1991). Generally,
to raise a claimed error on appeal, a litigant must object at trial when the alleged
5 error occurs. J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998). “The requirement of
a contemporaneous objection is based on practical necessity and basic fairness in the
operation of a judicial system. It places the trial judge on notice that error may have
been committed and provides him an opportunity to correct it at an early stage of the
proceedings.” Castor v. State, 365 So. 2d 701, 703 (Fla. 1978). “The sole exception
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SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2023-0235 Lower Tribunal No. CF17-529 _____________________________
ROBERT WAYNE LINCOLN,
Appellant, v.
STATE OF FLORIDA,
Appellee. _____________________________
Appeal from the Circuit Court for Highlands County. Peter F. Estrada, Judge.
December 30, 2024
STARGEL, J.
Robert Wayne Lincoln appeals his judgment and sentence for lewd
molestation. 1 While Lincoln challenges several of the trial court’s rulings, we find
merit only in the claim that his judgment and sentence for the crime of lewd
molestation under section 800.04(5)(b), Florida Statutes (2021), against a victim less
1 This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023. than twelve years of age, was improper. Lincoln was sentenced to life in prison
under section 800.04(5)(b), which required a jury finding that the victim was less
than twelve years of age. There was no such finding in this case, however, and the
evidence showed the victim turned twelve before the date of the offense. In fact, the
jury was only instructed on lewd molestation on a victim twelve or older, but less
than sixteen years of age, which is a second-degree felony under section
800.04(5)(c)2. The State concedes error on this point.
We now reverse and remand for the trial court to vacate the judgment for lewd
molestation as a first-degree felony under section 800.04(5)(b). Since the jury was
properly instructed under section 800.04(c)2 and found Lincoln guilty of that
offense, on remand, the trial court should enter judgment for that offense, obtain a
corrected scoresheet and pre-sentence investigation, and resentence Lincoln on the
second-degree felony of lewd molestation.
Background
Lincoln was charged with lewd molestation for intentionally touching his
step-granddaughter in a lewd or lascivious manner when he put his hands inside the
bottoms of her two-piece bathing suit while swimming in the pool at his home. The
amended information charged that Lincoln committed the offense against “a child
2 under 12 years of age, contrary to Florida Statutes 800.04” and included the
notations “(LIFE FEL) (LEVEL 9).”2
The facts regarding the victim’s age at the time of the offense are not in
dispute. The State began its opening statement at trial by informing the jury, “[i]n
the summer of 2013, [the victim] was twelve years old. She was at her Nana and
Grandpa Bob’s house swimming in their pool.” The victim testified on direct
examination that she had just turned twelve when the incident occurred. She further
testified that it was the summer of 2013, and when asked how old she would have
been, she again testified she was twelve. On redirect, she was once again asked how
old she was when this happened and she answered, “eleven, and I would have turned
twelve.” The State’s argument opposing the defense’s motion for judgment of
acquittal included a reference to the victim being twelve years old, and the closing
argument is replete with references to the victim being a twelve-year-old child.
There was no evidence at trial of the victim being under twelve. In fact, at the
charge conference, the parties agreed to the jury instructions and verdict form, both
of which contained only the lesser included offense of lewd molestation on a victim
2 The dates included in the amended information for the alleged lewd molestation were between May 1, 2013, and June 15, 2017, leaving only a ten-day period at the beginning of that timeframe before the victim would have turned twelve on May 10, 2013.
3 twelve years of age or older, but less than sixteen years of age, a second-degree
felony.3 That agreed-upon jury instruction provided as follows:
To prove the crime of lewd or lascivious molestation, the State must prove the following three elements beyond a reasonable doubt:
1. Robert Lincoln, in a lewd or lascivious manner, intentionally touched the genitals or genital area of [victim].
2. At the time of the offense, [victim] was 12 years of age or older but less than 16 years of age.
3. At the time of the offense, Robert Lincoln was 18 years of age or older.
The words “lewd” and “lascivious” mean the same thing: a wicked, lustful, unchaste, licentious or sensual intent on the part of the person doing an act.
At the conclusion of trial, the court informed Lincoln that the jury “found you
to be guilty of lewd molestation,” and “found you had sexual contact with the
victim.” It then adjudicated Lincoln “guilty of these offenses” without any
indication as to whether he would be convicted of a first-degree or second-degree
felony. Apparently, this is where the error began. Instead of reflecting the lesser
offense on which the jury was instructed and on which it convicted, the Clerk of
Court Disposition Memorandum, which still showed the original charge pre-printed
at the top of the form, contained a check mark next to “jury verdict” with the hand-
3 The only lesser-included offenses discussed by the parties and included on the verdict form were for battery under section 784.03, and for an unnatural or lascivious act under section 800.02, both category two lesser-included offenses.
4 written notation: “Guilty as charged.” The Jury Trial Progress Report also reflected
the verdict as guilty as charged. The issue was not raised to the trial court by the
State or defense, and sentencing was set out six weeks for a Florida Department of
Corrections Pre-Sentence Investigation (PSI) to be prepared.
Ultimately, the PSI was prepared based on the information provided by the
trial court and, like the other trial court documents, erroneously reflected that
Lincoln was found guilty as charged of lewd molestation as a first-degree felony
punishable by life. At the sentencing hearing, the State argued for life in prison in
accordance with that charge, notwithstanding its argument during the hearing that
the victim was twelve at the time of the offense. The defense argued mitigating
factors and requested leniency but did not bring the error in the PSI or scoresheet to
the court’s attention. No one addressed the error, and the trial judge sentenced
Lincoln to life in prison.
Law and Analysis
I. Fundamental Error
First, we must address the failure to preserve the error for review. There was
no contemporaneous objection to the jury instructions at trial, nor was there any
objection to the sentence imposed for the first-degree felony, so our review is for
fundamental error. See State v. Delva, 575 So. 2d 643, 644 (Fla. 1991). Generally,
to raise a claimed error on appeal, a litigant must object at trial when the alleged
5 error occurs. J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998). “The requirement of
a contemporaneous objection is based on practical necessity and basic fairness in the
operation of a judicial system. It places the trial judge on notice that error may have
been committed and provides him an opportunity to correct it at an early stage of the
proceedings.” Castor v. State, 365 So. 2d 701, 703 (Fla. 1978). “The sole exception
to the contemporaneous objection rule applies where the error is fundamental.” F.B.
v. State, 852 So. 2d 226, 229 (Fla. 2003) (citing J.B., 705 So. 2d at 1378). An error
is fundamental “when it goes to the foundation of the case or the merits of the cause
of action and is equivalent to a denial of due process.” Id. (quoting J.B., 705 So. 2d
at 1378). “The doctrine of fundamental error should be applied only in rare cases
where a jurisdictional error appears or where the interests of justice present a
compelling demand for its application.” Smith v. State, 521 So. 2d 106, 108 (Fla.
1988) (citing Ray v. State, 403 So. 2d 956 (Fla. 1981)).
The sole distinction between lewd molestation as a crime punishable by life
under section 800.04(5)(b) and lewd molestation punishable as a second-degree
felony under section 800.04(5)(c)2 is the age of the victim.4 As set forth above, the
4 Section 800.04 is titled “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.” Various offenses are included in this section, including lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition. These offenses are then divided into degrees determined by the age of the victim and the age of the offender. The pertinent portion of 800.04(5) for lewd or lascivious molestation provides as follows:
6 trial court sentenced Lincoln to life in prison based on the crime of lewd and
lascivious molestation on a victim under twelve years of age, despite the fact that
the jury found Lincoln guilty of the lesser-included offense of lewd and lascivious
molestation on a victim twelve years of age or older but less than sixteen years of
age. Thus, the jury found Lincoln guilty of a second-degree felony, which carries a
maximum penalty of fifteen years, but the trial court adjudicated Lincoln guilty and
sentenced him to life in prison, in accordance with the first-degree felony charged.
We find it was fundamental error to adjudicate Lincoln guilty of a first-degree felony
and to sentence him accordingly when the jury never found him guilty of that crime.
See Burrell v. State, 601 So. 2d 628, 629 (Fla. 2d DCA 1992) (“[I]t would be
fundamental error not to correct on appeal a situation where [a defendant] stands
convicted of a crime that never occurred.” (second alteration in original) (quoting
Nelson v. State, 543 So. 2d 1308, 1309 (Fla. 2d DCA 1989))).
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony, punishable as provided in s. 775.082(3)(a)4.
(c)1. An offender less than 18 years of age who commits lewd or lascivious molestation against a victim less than 12 years of age; or
2. An offender 18 years of age or older who commits lewd or lascivious molestation against a victim 12 years of age or older but less than 16 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
7 II. Remedy Upon Remand
Having determined that fundamental error occurred, we turn our focus to the
remedy upon remand. The State concedes error as to Lincoln’s conviction and
sentence but not as to the verdict because the jury instructions and verdict form
clearly indicate the jury found every element of the lesser-included crime beyond a
reasonable doubt. Lincoln, on the other hand, argues the verdict, judgment, and
sentence were all improper, and must be reversed and remanded for a new trial for
several reasons.
But Lincoln’s arguments overlook that the State was entitled to an instruction
on the lesser-included second-degree offense of lewd and lascivious molestation. “If
an offense meets the criteria for an instruction and verdict choice as either a
necessarily or permissive lesser included offense, the State may insist on its
inclusion, even over defense objection.” Williams v. State, 957 So. 2d 595, 599 (Fla.
2007); see also State v. Johnson, 601 So. 2d 219, 220 (Fla. 1992) (holding that the
State has a right to instructions on permissive lesser-included offenses over defense
objection). The Florida Rules of Criminal Procedure also provide guidance for the
court in such situations:
On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
....
8 (b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.
Fla. R. Crim. P. 3.510. The Florida Rules of Criminal Procedure provide further
guidance when considering an indictment or information containing an offense
divided into degrees:
If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.
Fla. R. Crim. P. 3.490.
Section 800.04(5)(a)-(e) clearly divides the crime of lewd or lascivious
molestation into degrees based upon the age of the victim and the perpetrator.
Therefore, rule 3.490 permits the jury to find the defendant guilty of the offense
charged or any offense of a lesser degree that is supported by the evidence.
The jury verdict here was supported by the evidence. The jury clearly found
sufficient evidence for the first and third elements, which are no different than the
elements of the crime for which Lincoln was originally charged. See Fla. Std. Jury
Instr. (Crim.) 11.10(c). Thus, it was only the second element, the age of the victim
at the time of the offense, that was at issue. And the victim testified repeatedly that
she was twelve at the time of the offense. That fact is not in dispute. Thus, the jury
was properly instructed on the lesser-included offense based on the evidence
9 presented and found Lincoln guilty of each element required by section
800.04(5)(c)2. And, under rule 3.510(b), Lincoln could be properly convicted of a
“lesser included offense of the offense charged in the . . . information” and
“supported by the evidence.” Accordingly, there was no error in the jury’s verdict;
rather, the error was in the judgment entered by the court.
III. Erroneous Adjudication of Guilt
Although there was no flaw in the jury’s verdict, as noted above, the judgment
is erroneous because it adjudicates Lincoln guilty of a crime of which he was never
found guilty by the jury. The State urges us to use section 924.34, Florida Statues,
to correct this error. It argues that section confers authority upon us to reverse and
remand for the trial court to enter judgment for the second-degree felony under
section 800.04(5)(c)2. While we ultimately agree this is the proper remedy, we
cannot arrive at this conclusion using section 924.34 based on the plain wording of
the statute. Indeed, section 924.34 applies “[w]hen the appellate court determines
that the evidence does not prove the offense for which the defendant was found
guilty but does establish guilt of a lesser statutory degree of the offense or a lesser
offense necessarily included in the offense charged.” But the evidence here did
establish the offense for which Lincoln was found guilty. Thus, the statute does not
apply.
10 In the absence of applicable statutory authority, we turn to guiding precedent.
Florida courts have long held that “the judgment of the Court must conform to the
verdict of the jury.” Holloman v. State, 191 So. 36, 38 (Fla. 1939); see also Lewis
v. State, 19 So. 2d 199 (Fla. 1944); Perkins, 92 So. 2d at 643. Likewise, Florida
courts have long held the “error on the part of the lower Court does not . . . entitle
the plaintiff in error to a new trial; but the case will have to be remanded for the
pronouncement of proper judgment and sentence.” Holloman, 191 So. at 38. In
Holloman, the jury returned a verdict of manslaughter, but the court “adjudged the
defendant guilty of murder in the second degree, sentencing him to five years in the
State prison.” Id. at 37. The Florida Supreme Court reversed the judgment and
“remanded to the lower Court for the pronouncement of a proper judgment and
sentence.” Id. at 38.
In Lewis, the Florida Supreme Court held:
As stated above the charge was breaking and entering with intent to commit a misdemeanor. The verdict was regular in that it found guilt as charged. The judgment of conviction is, ‘You, Edgar Lewis, having been convicted by a jury of the crime of Burglary, the Court adjudges you to be guilty.’
No doubt the busy trial judge was misled by the style of ‘burglary’ upon the information. It was misleading but wholly superfluous inasmuch as the charging part of the information was proper.
It follows that the verdict is good and the judgment is erroneous. The judgment is reversed and the cause remanded for a proper adjudication of guilt and sentence.
11 Lewis, 19 So. 2d at 199-200.
In Starkes v. State, 438 So. 2d 1004, 1004 (Fla. 2d DCA 1983), the State
charged Starkes with sexual battery, aggravated assault, and kidnapping. A jury
returned a verdict of guilty as charged on the sexual battery and aggravated assault
counts, and found Starkes guilty of false imprisonment, a lesser-included offense of
kidnapping. Id. The trial judge then announced he was adjudicating the defendant
“pursuant to the [j]ury verdict.” Id. (alteration in original). Through a clerical error
similar to the one faced by Lincoln, the trial court entered a conviction for
kidnapping instead of false imprisonment. Id. On appeal, the court vacated the
judgment and sentence for kidnapping and remanded to the trial court “with
directions to enter a judgment for false imprisonment and impose a sentence as
provided by law.” Id.
We have established the jury instruction was properly given, and therefore,
Lincoln’s argument for a new trial fails. We agree with the State that the
fundamental error arises from the judgment and sentence, but not the jury’s verdict;
however, we do not agree that section 924.34 provides the remedy requested.
Instead, we have clear precedent to overturn the erroneous judgment and remand to
the trial court to enter the proper judgment consistent with the jury verdict.
12 Conclusion
Because fundamental error occurred when the trial court entered an erroneous
judgment inconsistent with the jury verdict, and imposed an improper sentence based
on that judgment, we reverse. We remand to the trial court to vacate the judgment
and sentence, for preparation of a corrected scoresheet and corrected PSI, and entry
of a judgment and sentence for the crime of lewd molestation under section
800.04(5)(c)2. In all other respects, we affirm.
AFFIRMED in part; REVERSED in part; and REMANDED with
instructions.
MIZE and BROWNLEE, JJ., concur.
Howard L. “Rex” Dimmig, II, Public Defender and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and William C. Shelhart, Assistant Attorney General, Tampa, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED