       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         RONNIE J. KNIGHTON,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-4630

                              [May 25, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Robin Lee Rosenberg, Judge; L.T. Case No.
11CF011008AMB.

   Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Ronnie Knighton appeals his judgment and sentence for one count of
lewd or lascivious battery. Knighton argues that the trial court reversibly
erred by: (1) refusing his request for a jury instruction on the permissive
lesser-included offense of unnatural and lascivious act; and (2) including
his prior juvenile adjudications on the sentencing scoresheet. We agree
with Knighton that the trial court erred by failing to give the requested
lesser-included offense instruction and reverse.

   Knighton was charged with one count of lewd or lascivious battery by
an information specifically alleging penile union or penetration with the
child victim’s vagina. At trial, the State introduced paternity test results
establishing that Knighton fathered a child with the victim and thus
conclusively proved that Knighton committed the primary offense. During
the charge conference, Knighton requested the jury be instructed on the
lesser-included offense of unnatural and lascivious act. The State objected
to the request, reasoning that there is nothing “unnatural” about
traditional penile-vaginal intercourse. The trial court agreed with the State
and denied the request. The jury found Knighton guilty as charged.

    Following the jury verdict but before sentencing, Knighton moved to
strike his prior juvenile dispositions from the sentencing scoresheet based
on the supreme court’s holding in Alleyne v. United States, 133 S. Ct. 2151
(2013). The trial court denied the motion and sentenced Knighton to
twelve years in prison, a sentence above the minimum mandatory but well
within the statutory limits. This appeal follows.

    With respect to the jury instruction issue, “[a] trial court must instruct
on necessarily lesser-included offenses and permissive lesser-included
offenses when supported by the evidence at trial.” Cartagena v. State, 125
So. 3d 919, 921 (Fla. 4th DCA 2013) (emphasis added) (citing State v.
Wimberly, 498 So. 2d 929, 932 (Fla. 1986)). “When deciding whether an
instruction for a category two offense is necessary, a trial judge must
‘analyze the information or indictment and the proof to determine if
elements of category [two] crimes may have been alleged and proved.’”
Williams v. State, 627 So. 2d 1279, 1280 (Fla. 1st DCA 1993) (quoting
Wimberly, 498 So. 2d at 931).

    Here, Knighton was charged with lewd or lascivious battery pursuant
to section 800.04, Florida Statutes. § 800.04(4)(a)1., Fla. Stat. (2013) (“A
person commits lewd or lascivious battery by . . . [e]ngaging in sexual
activity with a person 12 years of age or older but less than 16 years of age
. . . .”). Therefore, the salient questions in this case are: (1) whether
Knighton committed an unnatural and lascivious act; and (2) if so, whether
the offense of unnatural and lascivious act is a permissive lesser-included
offense to lewd or lascivious battery.

   In Harris v. State, 742 So. 2d 835 (Fla. 2d DCA 1999), the Second
District held that a defendant charged with lewd or lascivious battery is
not entitled to an instruction on the lesser-included offense of unnatural
and lascivious act regardless of whether the offense is supported by the
evidence at trial. The court reasoned that the legislature must have
“intended for section 800.02 [unnatural and lascivious act] to be applied
to different factual situations than would fall under section 800.04 [lewd
or lascivious battery]. The term ‘unnatural’ in 800.02 distinguishes
800.02 from 800.04, and implies something more than what is covered by
800.04.” Id. at 838.

   Since the Second District’s holding in Harris, however, the Fifth District
revisited the exact same issue in Funiciello v. State, 179 So. 3d 388 (Fla.
5th DCA 2015). There, the court held that a defendant charged with lewd
or lascivious battery is entitled to an instruction on the lesser-included

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offense of unnatural and lascivious act. Id. at 391. In so holding, the
court emphasized that “the standard jury instruction for lewd or lascivious
battery expressly lists the crime of unnatural and lascivious act as a
category-two lesser-included offense.” Id. at 390. See also Fla. Std. Jury
Instr. (Crim.) 11.10(a). The court further conclusively held that “digital
penetration and sexual intercourse between an adult perpetrator and a
child victim constitute unnatural and lascivious acts in that such conduct
is not in accordance with nature or with normal feelings or behavior and
are lustful acts performed with sensual intent on the part of the
defendant.” Funiciello, 179 So. 3d at 391 (emphasis added).

   We adopt the Fifth District’s reasoning and hold that: (1) sexual
intercourse between an adult and child constitutes an unnatural and
lascivious act; and (2) the offense of unnatural and lascivious act is a
permissible lesser-included offense to lewd or lascivious battery.
Accordingly, as the information in this case specifically alleged that
Knighton unlawfully engaged in sexual activity by having sexual
intercourse with the child victim, the elements of unnatural and lascivious
act were both alleged and proved at trial. Knighton, therefore, was entitled
to an instruction on the lesser-included offense of unnatural and
lascivious act. See Funiciello, 179 So. 3d at 391; see also Reddick v. State,
394 So. 2d 417, 418 (Fla. 1981) (holding that “failure to instruct on the
next immediate lesser included offense (one step removed) constitutes
error that is per se reversible”).

    Lastly, although moot in light of our holding on the jury instruction
issue, we further hold that the trial court did not err in including
Knighton’s prior juvenile dispositions on the sentencing scoresheet. See
Nichols v. State, 910 So. 2d 863, 865 (Fla. 1st DCA 2005) (holding that a
defendant’s “prior juvenile dispositions are valid as prior criminal
convictions because Florida’s juvenile procedures are constitutionally
sound”); Fla. R. Crim. P. 3.704(d)(14)(B) (expressly providing for the
inclusion of juvenile dispositions on a sentencing scoresheet); see also
Cruz v. State, 40 Fla. L. Weekly D1172, D1176 (Fla. 4th DCA May 20, 2015)
(refusing to revisit pre-Alleyne cases because “the United States Supreme
Court has yet to overrule the ‘prior conviction’ exception [and therefore]
Almendarez–Torres is still binding precedent”).

   Reversed and remanded.

GROSS and KLINGENSMITH, JJ., concur.

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Not final until disposition of timely filed motion for rehearing.




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