Opinion
No. 79-26.
November 12, 1980.
Appeal from the Circuit Court, Broward County, Humes T. Lasher, J.
Alan H. Schreiber, Public Defender, Fort Lauderdale, and Jerry B. Smith, Asst. Public Defender, Pompano Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
The question on this appeal is whether a person of eleven years, ten months and twenty-one days of age falls within the statutory classification of "eleven years of age or younger." See Section 794.011(2). We answer in the negative and therefore reverse.
Thomas James Wright was convicted of committing a sexual battery upon a person of eleven years of age or younger in violation of Section 794.011(2), Florida Statutes (1977). The victim was eleven years, ten months and twenty-one days of age on the date of the offense and thus the defendant consistently argued throughout the proceedings below, that the victim was older than the statutory requirement of eleven years of age. We agree.
The trial court did not have the benefit of our decision in State v. Carroll, 378 So.2d 4 (Fla. 4th DCA), cert. denied, 385 So.2d 761 (Fla. 1980) in which we held that the term "eleven years of age or younger" encompasses the time between a person's birth and their eleventh birthday. Inasmuch as the victim in this case had passed her eleventh birthday, defendant's conviction and sentence must be reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
LETTS, C.J., and GLICKSTEIN and HURLEY, JJ., concur.