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.
2

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 
3

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.