CHARLES OSBORN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D14-2947

_____________________________/

Opinion filed November 3, 2015.

An appeal from the Circuit Court for Leon County.

James C. Hankinson, Judge.

Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Steven L. Seliger, 

and L. Allen Beard, Assistant Public Defenders, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney 

General, Tallahassee, for Appellee.

PER CURIAM.

In this case, we address whether a prior conviction for the offense of sexual 

battery, in this case one committed in Mississippi, is a proper predicate to prove 

felony battery under section 784.03(2), Florida Statutes (2001). The State charged 

Appellant Charles Osborn with a sexual battery and felony battery occurring in 
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Florida. The trial court severed the sexual battery count and the jury found Mr. 

Osborn not guilty. Regarding the felony battery count, the amended information 

alleged that Mr. Osborn: 

On or about March 10, 2013, did unlawfully actually and intentionally 

touch or strike another person, C.M., against the will of the other; or 

did intentionally cause bodily harm to that person, and the defendant 

has a prior conviction for a battery including Mississippi case # 2008-

78-MP-2 (Sexual Battery),[1] contrary to Section 784.03(2), Florida 

Statutes. 

Defense counsel filed a motion to dismiss the felony battery count pursuant to 

Florida Rules of Criminal Procedure 3.190(b) on the basis that the prior sexual 

battery in Mississippi was not a proper predicate conviction under section 

 

1 Mississippi defines sexual battery in substantially the same way as Florida:

(1) A person is guilty of sexual battery if he or she engages in sexual 

penetration with:

(a) Another person without his or her consent;

(b) A mentally defective, mentally incapacitated or physically helpless 

person;

(c) A child at least fourteen (14) but under sixteen (16) years of age, if 

the person is thirty-six (36) or more months older than the child; or

(d) A child under the age of fourteen (14) years of age, if the person is 

twenty-four (24) or more months older than the child.

(2) A person is guilty of sexual battery if he or she engages in sexual 

penetration with a child under the age of eighteen (18) years if the 

person is in a position of trust or authority over the child including 

without limitation the child's teacher, counselor, physician, 

psychiatrist, psychologist, minister, priest, physical therapist, 

chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout 

leader or coach.

§ 97-3-95, Miss. Code (2015) (effective without amendment since 1998).
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784.03(2) which includes only battery, aggravated battery, and felony battery. 

Counsel argued that the statute, a penal one, should be strictly construed. The trial 

court denied the motion and the jury found Mr. Osborn guilty of battery. In a 

bifurcated proceeding, the jury found that the Mississippi sexual battery was a 

battery conviction for purposes of section 784.03(2). Consequently, Mr. Osborn 

was adjudicated guilty of felony battery. He now appeals the denial of the motion 

to dismiss.

Section 784.03(2) provides that a misdemeanor battery is reclassified as a 

felony battery if the offender “has one prior conviction for battery, aggravated 

battery, or felony battery.” § 784.03(2), Fla. Stat. The statute does not expressly 

reference sexual battery as a qualifying offense, so the question is whether it can be 

considered a battery for purposes of reclassification. The decision in Aldacosta v. 

State, 41 So. 3d 1096 (Fla. 2d DCA 2010), which addressed whether a lewd and 

lascivious battery is a qualifying offense, is instructive. Because section 784.03(2) 

did not explicitly include lewd and lascivious battery, the Second District reasoned 

that “if lewd or lascivious battery is to be treated as a qualifying offense, it must 

obtain this status under the general references in section 784.03(2) to ‘battery’ or 

‘felony battery.’” Id. at 1098. It compared the elements of a lewd and lascivious 

battery to the elements of a battery and a felony battery, and held that Aldacosta’s 

“prior conviction for lewd or lascivious battery does not meet the statutory 
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definition of either battery or felony battery.” Id. The court, referencing the 

supreme court’s seminal decision in State v. Warren, 796 So. 2d 489 (Fla. 2001), 

stated:

The Legislature responded to Warren[2] by adding the terms 

“aggravated battery” and “felony battery” to section 

784.03(2). See ch. 2001-50, § 4, at 320, Laws of Fla. The Legislature 

did not include lewd or lascivious battery in the list of qualifying prior 

offenses. “Battery” is specifically defined by statute, and section 

784.03(2) does not refer to a prior conviction for “any battery.” 

Additionally, unlike the offense of aggravated battery at issue 

in Warren, lewd or lascivious battery can be committed without 

touching or striking another person against his or her 

will. See § 800.04(1)(b), (4)(a)-(b). Given the elements of the offense 

of lewd or lascivious battery, we conclude that Warren is not 

controlling and is distinguishable.

Aldacosta, 41 So. 3d at 1099. As such, the court concluded that “[b]attery is not a 

necessarily lesser-included offense of lewd or lascivious battery.” Id.

In contrast to Aldacosta, the State points out that a battery is a lesserincluded offense to sexual battery, meaning that a person necessarily commits a 

battery if he commits a sexual battery. A “battery” occurs when a person “actually 

and intentionally touches or strikes another person against the will of the other; or 

intentionally causes bodily harm to another person.” § 784.03(1)-(2), Fla. Stat. A 

“sexual battery” is the “oral, anal, or vaginal penetration by, or union with, the 

 

2 The State avers that “Section 784.03(2) was amended in May, 2001, after Warren 

I was decided, but before the Supreme Court’s opinion in Warren II was issued in 

July, 2001.” Warren II is not the ultimate authority, however, because the effective 

date of the statutory amendment was July 1, 2002—after Warren II issued.
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sexual organ of another or the anal or vaginal penetration of another by any other 

object” without consent. § 794.011(1)(h), (5)(a)-(c), Fla. Stat. (2002). Furthermore, 

a lewd and lascivious battery is a permissive lesser-included offense to sexual 

battery, while simple battery is a necessary lesser-included offense. Compare

Williams v. State, 957 So. 2d 595 (Fla. 2007) (lewd and lascivious battery is a 

permissive lesser-included offense to sexual battery), with Khianthalat v. State, 

974 So. 2d 359, 362 (Fla. 2008) (concluding “because lack of consent is an 

element of sexual battery under subsection (2)(a), the offense always includes a 

charge of simple battery as a necessarily lesser-included offense, just as it does 

under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser 

Included Offenses, § 794.011.”). Because the Mississippi sexual battery at issue 

necessarily meets the statutory definition of a battery under Florida law, it is a

qualifying offense.

AFFIRMED.

RAY, SWANSON, and MAKAR, JJ., CONCUR.