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Winchester v. State

District Court of Appeal of Florida, Second District
Jul 1, 1994
639 So. 2d 84 (Fla. Dist. Ct. App. 1994)

Summary

Holding that defendant's age only prescribes the means by which an offender should be sentenced and is not an element of the crime

Summary of this case from Hartge v. Crosby

Opinion

No. 94-01691.

June 3, 1994. Rehearing Denied July 1, 1994.

Appeal from the Circuit Court, Lee County, Isaac Anderson, Jr., J.


The appellant filed a 3.850 motion contending that his sentence for sexual battery of a child is illegal because an essential element necessary for conviction under the statute was not alleged in the information, the jury instruction, or the verdict form. The missing allegation was the fact that the defendant is eighteen years of age or older. This issue was not raised in the trial court or by way of his previous appeal, motion for writ of habeas corpus, or mandamus.

We agree with the trial judge that the appellant did not properly preserve this issue for appellate review. In addition, we agree, as did the trial judge, with the Fourth District's holding in Jesus v. State, 565 So.2d 1361 (Fla.App. 4th DCA 1990), that section 794.011(2), Florida Statutes (1981), refers to a person's age as only prescribing the means by which an offender should be sentenced and not as an element of the crime.

We therefore affirm the denial of the 3.850 motion.

SCHOONOVER, A.C.J., and THREADGILL, J., concur.


Summaries of

Winchester v. State

District Court of Appeal of Florida, Second District
Jul 1, 1994
639 So. 2d 84 (Fla. Dist. Ct. App. 1994)

Holding that defendant's age only prescribes the means by which an offender should be sentenced and is not an element of the crime

Summary of this case from Hartge v. Crosby
Case details for

Winchester v. State

Case Details

Full title:EDWARD WINCHESTER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Jul 1, 1994

Citations

639 So. 2d 84 (Fla. Dist. Ct. App. 1994)

Citing Cases

Hartge v. Crosby

First, although the record attachments supplied by the State do not refute the Defendant's claim that counsel…

State v. D.A

The Second District followed Jesus, and held that age was not an element. Winchester v. State, 639 So.2d 84…