Underwood v. State

District Court of Appeal of Florida

Underwood v. State

985 So. 2d 705, 2008 Fla. App. LEXIS 10529, 2008 WL 2695873

CourtDistrict Court of Appeal of Florida

DecidedJuly 11, 2008

DocketNo. 5D07-1998

StatusPublished

This text of 985 So. 2d 705 (Underwood v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Underwood v. State, 985 So. 2d 705, 2008 Fla. App. LEXIS 10529, 2008 WL 2695873 (Fla. Ct. App. 2008).

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Opinion

SAWAYA, J.

Joseph Underwood appeals his conviction and sentence for sexual activity with a minor while in familial authority in violation of section 794.011(8)(b), Florida Statutes (2005), and false imprisonment in violation of section 787.02(1), (2), Florida Statutes (2005). We affirm the false imprisonment conviction and sentence.

Regarding the sexual activity conviction, Underwood claims the jury instructions were erroneous because the jury was not instructed that in order to convict him of sexual battery by union, the jury had to find that Underwood’s sexual organ had been in union with the victim’s vagina. See § 794.011(l)(h), Fla. Stat. (2005) (defining “sexual battery” as the “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object....”); Fla. Std. Jury Instr. (Crim) 11.6.¹ The State concedes this error, but argues that the error was not properly preserved. We have reviewed the record and it is clear that Underwood did timely object to the erroneous jury instruction, and he did properly preserve the error for our review. Accordingly, we reverse the conviction and sentence imposed for the sexual activity charge and remand for a new trial on that charge.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and PLEUS, JJ., concur.

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SAWAYA, J.

Joseph Underwood appeals his conviction and sentence for sexual activity with a minor while in familial authority in violation of section 794.011(8)(b), Florida Statutes (2005), and false imprisonment in violation of section 787.02(1), (2), Florida Statutes (2005). We affirm the false imprisonment conviction and sentence.

Regarding the sexual activity conviction, Underwood claims the jury instructions were erroneous because the jury was not instructed that in order to convict him of sexual battery by union, the jury had to find that Underwood’s sexual organ had been in union with the victim’s vagina. See § 794.011(l)(h), Fla. Stat. (2005) (defining “sexual battery” as the “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object....”); Fla. Std. Jury Instr. (Crim) 11.6.¹ The State concedes this error, but argues that the error was not properly preserved. We have reviewed the record and it is clear that Underwood did timely object to the erroneous jury instruction, and he did properly preserve the error for our review. Accordingly, we reverse the conviction and sentence imposed for the sexual activity charge and remand for a new trial on that charge.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and PLEUS, JJ., concur.

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Bluebook (online)

985 So. 2d 705, 2008 Fla. App. LEXIS 10529, 2008 WL 2695873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/underwood-v-state-fladistctapp-2008.