       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       JOHN ARTHUR MACLEAN,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-2467

                           [ February 19, 2020 ]


                         CORRECTED OPINION

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No.
502012CF011333A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Appellant, John Arthur Maclean, was found guilty of an armed sexual
battery which occurred on October 16, 1976. He argues on appeal that
the trial court reversibly erred by: (1) failing to instruct the jury on the
necessarily lesser-included offense of sexual battery, (2) allowing evidence
of two other sexual batteries into evidence, (3) allowing DNA evidence that
indicated probable contamination and tampering with other DNA samples
from other cases, and (4) denying his motion to dismiss based on a
violation of his constitutional right to a speedy trial.

   Because we conclude, and the State concedes, that the trial court
should have instructed the jury on the lesser-included charge of sexual
battery, we reverse appellant’s conviction and remand for a new trial. This
disposition renders it unnecessary for us to reach appellant’s other issues
raised on appeal.
   Before trial, appellant unsuccessfully moved to dismiss the charge of
armed sexual battery based on the statute of limitations. At trial, after
appellant’s case-in-chief, appellant informed the court that he wished to
waive his statute of limitations defense in order to have the jury instructed
on the lesser-included charge of sexual battery without a firearm. In
response, relying on Cartagena v. State, 125 So. 3d 919 (Fla. 4th DCA
2013), the State argued that appellant could not waive the statute of
limitations defense because he previously moved to dismiss the action
based on that defense. Although the trial court did not dismiss any
charges which were part of the same criminal episode, the trial court
denied appellant’s request.

   The issue of whether a trial court erred by failing to instruct the jury
on a necessarily lesser-included offense is a pure question of law and is
reviewed de novo. Walton v. State, 208 So. 3d 60, 64 (Fla. 2016).

   In Cartagena, we explained:

      [W]here the defendant has asserted the statute of limitations
      to prevent prosecution of some charged crimes arising out of
      the same criminal episode to avoid prosecution for those
      crimes, he cannot then [waive] the statute of limitations to
      secure the possibility of reducing his punishment as to crimes
      for which he still is being prosecuted.

125 So. 3d at 923.

   In other words, a criminal defendant cannot obtain a dismissal of a
charge based on the statute of limitations, and later at trial choose to waive
the statute of limitations defense as to lesser-included offenses of other
charges that arose out of the same criminal episode. Id. at 921–23.

    For example, in Cartagena, the defendant sought to waive his statute
of limitations defense to receive an instruction on the lesser-included
offense of sexual battery without a firearm. Id. at 920. We affirmed the
trial court’s refusal to accept the defendant’s waiver, holding that the
defendant could not use the defense to dismiss his burglary charge and
then waive the same defense at trial to crimes arising out of the same
criminal episode. Id. at 923.

   Here, the trial court denied appellant’s pre-trial motion to dismiss the
armed sexual battery charge based on the statute of limitations. After
presenting his case, appellant sought to waive the statute of limitations as

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to the lesser-included offense of sexual battery without a firearm so that
the jury could be instructed on that lesser-included offense. Although the
trial court determined that appellant met the requirements for an effective
waiver, it refused to accept the waiver and declined to instruct the jury on
the lesser-included offense.

   Unlike in Cartagena, where the defendant succeeded in asserting the
statute of limitations and obtaining a dismissal of one of the charges
occurring during the criminal episode, in this case appellant did not
succeed in obtaining a dismissal of the armed sexual battery charge based
on the statute of limitations. No charges arising out of the criminal episode
were dismissed based on appellant’s assertion of the defense. Therefore,
the trial court should have accepted appellant’s waiver and instructed the
jury on the lesser-included offense of sexual battery without a firearm.

   We reverse appellant’s judgment of conviction and sentence and
remand for a new trial. This disposition renders it unnecessary for us to
reach appellant’s other issues raised on appeal.

   Reversed and Remanded.

MAY and DAMOORGIAN, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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