Supreme Court of Florida

____________

No. SC20-1053

____________

REGGIE EUGENE ALLEN,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

September 2, 2021

COURIEL, J.

We have for review the decision in Allen v. State, 298 So. 3d 

704, 707 (Fla. 1st DCA 2020), in which the First District Court of 

Appeal certified the following question of great public importance:

IS THE SCHEDULE OF LESSER INCLUDED OFFENSES 

PROMULGATED BY THE FLORIDA SUPREME COURT IN 

2018 IN ERROR IN CLASSIFYING SEXUAL BATTERY 

(§ 794.011(5)) AS A NECESSARILY LESSER INCLUDED 

OFFENSE OF CAPITAL SEXUAL BATTERY 

(§ 794.011(2)(a), Fla. Stat. (2018))?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The answer 

to the certified question is yes. The schedule incorrectly classifies
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sexual battery as a necessarily lesser included offense of capital 

sexual battery.

I

Reggie Eugene Allen was charged with three counts of sexual 

battery and one count of lewd or lascivious exhibition, all relating to 

incidents that took place between 2010 and 2016. Allen’s victim, 

T.W., is the daughter of his ex-girlfriend. T.W. was born on 

March 25, 2001, and was therefore between nine years old and

fifteen years old during the alleged incidents. At Allen’s trial, she 

was seventeen years old, and testified to events that took place 

when she was between nine and thirteen years old.

Without fixing a precise date to any individual episode of 

abuse, T.W. testified that Allen put his mouth on her vagina over 

twenty times. Three incidents stood out to her. Each occurred at a 

different location in Bay County; T.W. and her mother moved 

several times during the years relevant to this case. T.W. testified 

that she lived at a home on Williams Avenue until she was eleven, 

when she moved to a development called Aztec Apartments. T.W. 
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testified that she lived there until she was thirteen, when she moved 

to a home on Sims Avenue.1

The first incident occurred when T.W. was nine, at her home 

on Williams Avenue.2 T.W. testified that she and Allen were 

watching television in the living room when Allen started kissing 

her and rubbing her body. Allen rubbed her chest, touched her 

vagina, performed oral sex on her and then masturbated until 

1. At trial, T.W.’s mother also testified, albeit tentatively, to a 

timeline detailing when she and T.W. moved between homes. She 

testified that she lived at Edgewood apartments until “2010 

maybe[,]” moved to Aztec Apartments in 2010 when T.W. was “10 or 

11[,]” moved from Aztec to Williams Avenue in “maybe 14” when 

T.W. “would have been about 15 or 16[,]” then moved to Sims in 

2015, where the two of them stayed for “about three years.” T.W.’s 

mother also testified that T.W. confronted her about Allen when the 

two were living on Sims Avenue and T.W. was either thirteen or 

fourteen.

2. T.W. testified that the day after informing police that Allen 

had assaulted her, she spoke to an investigator on the Child 

Protection Team at the Child Advocacy Center. The Child Protection 

Team is specially trained to interview children by asking nonleading questions and eliciting uncoerced responses. T.W. testified 

that, while speaking to the social worker, she misspoke and 

confused the times when she lived at Williams Avenue and at Aztec 

Apartments. T.W. also testified that she misspoke in a deposition

taken by the defense, during which she testified that she moved to 

Aztec Apartments when she was ten. T.W. clarified her timeline at 

trial, testifying that she was nine and ten years of age at Williams 

Avenue, eleven through twelve at Aztec Apartments, and thirteen 

through fourteen at Sims Avenue.
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ejaculation. Then he told T.W. not to tell her mother what had 

happened.

T.W. testified that the second incident occurred when she was 

eleven, on the day she and her family moved to the Aztec 

Apartments development. T.W. and Allen were alone upstairs when

Allen told her to lie down so that he could perform oral sex on her, 

then did so. T.W. recalled that she started shaking and crying, 

telling Allen she was scared. T.W. testified that her mother was still 

at the Williams Avenue residence when the incident occurred.

The third incident occurred when T.W. was thirteen and living 

at the Sims Avenue address. T.W. testified that she was lying on 

her bed in her room when Allen walked in, shut the door, and 

pulled down her pants. T.W. testified that Allen placed his mouth 

on her vagina and performed oral sex on her. At some point, T.W.’s 

mother entered the room and Allen threw a blanket over T.W., 

pretending that he had been “play-fighting” with her. 

T.W. testified that, as to the other times Allen had performed 

oral sex on her, she could not recall the month, season, weather, or 

what time of year the incidents took place. She was eleven (so, in 

2012 or early 2013) when she first told her mother about all this.
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When T.W.’s mother confronted Allen soon after, he denied 

everything. He moved out of the house on Williams Avenue shortly 

thereafter, but eventually moved back in when T.W. and her mother 

moved to the Aztec Apartments.

In 2017, a then-sixteen-year-old T.W. and her mother had a 

fight about T.W.’s close relationship with her half-brother. During 

the fight, police arrived and T.W. told them about Allen’s actions.

Again Allen denied all these allegations, this time to the police.

Nonetheless, on November 13, 2017, Allen was charged by 

information with four criminal counts, covering three distinct time 

periods. In count I, the only count of conviction Allen appealed to 

the First District, he was charged with committing sexual battery on 

a person less than twelve years of age—capital sexual battery—on 

or between March 25, 2010, and March 24, 2012. Allen did not 

dispute at trial and does not dispute now that, during this time, 

T.W. was between nine and ten years old.

Allen took the stand at trial. He testified that he never put his 

mouth on T.W.’s genitals, masturbated in her presence, or 

interacted with her inappropriately. Allen testified that the living 

room at Williams Street had no television, contradicting T.W.’s 
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testimony that Allen assaulted her while the two were watching 

television. Allen also testified that he was never alone with T.W. at 

Aztec Apartments on the day he helped T.W.’s mother move, 

contradicting T.W.’s testimony that he assaulted her while the two 

were alone and T.W.’s mother was at the former residence.

At the conclusion of the evidence at trial, Allen requested that, 

as to count I, the jury be instructed on sexual battery as a 

necessarily lesser included offense of capital sexual battery. At the 

time, the Schedule of Lesser Included Offenses included in the 

Florida Standard Jury Instructions in fact listed sexual battery as a 

necessarily lesser included offense of capital sexual battery—

otherwise known as a “category one” lesser included offense.3 The 

State argued that it was illogical to provide such an instruction, 

because sexual battery applies to a victim twelve years and older,

and it was undisputed that T.W. was nine or ten during the dates 

3. At the time of Allen’s trial, sexual battery was listed as a 

category one, necessarily included lesser offense of capital sexual 

battery. After the First District’s decision in Allen v. State, however, 

the Supreme Court Committee on Standard Jury Instructions 

amended the standard jury instruction for capital sexual battery, 

moving sexual battery to a category two, permissive lesser included 

offense. Fla. Std. Jury Instr. (Crim.) 11.1 (2020).
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alleged for count I. The trial court agreed and denied Allen’s 

request, exercising its discretion to determine which instructions to 

give based on the facts adduced at trial. The trial court further 

explained that it had the power to determine what constituted a 

necessarily lesser included offense.

The trial court instructed the jury as follows: “As to Count I, 

sexual battery, to prove the crime of sexual battery on a person less 

than 12 years of age, the State must prove the following three 

elements beyond a reasonable doubt: one, Reggie Eugene Allen 

committed an act on [T.W.] in which the sexual organ of [T.W.] had 

union with the mouth of Reggie Eugene Allen; and two, at the time 

of the offense, [T.W.] was less than 12 years of age; and three, at the 

time of the offense, Reggie Eugene Allen was 18 years of age or 

older.” The court explained that if the jury was not convinced that 

Allen had committed capital sexual battery, “there may be evidence 

that he committed other acts that would constitute a lesser 

included crime.” The court directed, “[I]f you decide that the main 

accusation has not been proved beyond a reasonable doubt, you 

will next need to decide if the defendant is guilty of any lesser 

included crime.” The jury was then instructed as to two other 
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lesser included offenses: lewd or lascivious battery on a victim less 

than sixteen years of age, and battery.

As to count III, which charged Allen with capital sexual battery 

on or between March 25, 2012, and March 24, 2014,4 the court 

instructed the jury on sexual battery, lewd or lascivious battery, 

and battery as lesser included offenses of capital sexual battery.

The jury found Allen guilty as charged on all four counts. 

Allen appealed, arguing that the trial court erred in denying his 

motion to instruct the jury on sexual battery as a category one, 

necessarily lesser included offense of capital sexual battery. The 

First District affirmed and certified to this Court the question we 

have before us.

II

Because T.W.’s age is undisputed, the First District’s decision 

is purely a question of law, which we review de novo. Khianthalat v. 

State, 974 So. 2d 359, 360 (Fla. 2008) (“Because this matter 

involves a legal determination based on undisputed facts, this 

Court’s standard of review is de novo.”). The trial court’s rulings on 

4. It is undisputed that T.W. was between eleven and twelve

during this time period.
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jury instructions generally get the benefit of the doubt. See State v. 

Bryan, 287 So. 2d 73, 75 (Fla. 1973) (“[W]e recognized the 

importance of the trial judge on the scene who has the ‘feel’ of the 

case, the psychology of its movement through trial and what 

aspects appear from subtle inflections and overtones to be 

important in the jury’s mind and for its decision. That is one of the 

reasons that a trial court’s decision has historically had the 

presumption of correctness on appeal.”). As it happens, in this 

case, at trial, defense counsel, the prosecutor, the trial court, and 

the version of the jury instructions used all referred to an incorrect 

version of the sexual battery statute, section 794.011(5).5 Our 

5. Each referred to the version of the statute in effect at the 

time of Allen’s trial in 2019; however, “it is firmly established law 

that the statutes in effect at the time of commission of a crime 

control as to the offenses for which the perpetrator can be 

convicted, as well as the punishments which may be imposed.” 

State v. Smith, 547 So. 2d 613, 616 (Fla. 1989). The sexual battery 

statute in effect during the time period covered by count I (March 

25, 2010, to March 24, 2012) applied to any victim age twelve or 

older. The post-2014 sexual battery statute contains two classes of 

victim: those twelve years of age and older but younger than 

eighteen, and those eighteen years of age and older. Regardless of 

which version of the statute is used, a charge of sexual battery 

applies only to a victim twelve or older at the time of the alleged 

offense, and it is undisputed that T.W. was younger than twelve 

during the time period covered by count I.
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consideration of whether sexual battery is a necessarily lesser 

included offense of capital sexual battery is in any event the same, 

whatever version of the statute is used.

A

A lesser included offense is one whose elements are entirely 

contained within the elements of another, greater, offense. Sanders

v. State, 944 So. 2d 203, 206 (Fla. 2006). To determine whether 

and how an offense qualifies as a lesser included offense, “this 

Court’s precedent calls for a comparison of statutory elements.” 

Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006) (holding that, for 

double jeopardy analysis, grand theft is a lesser included offense of 

organized fraud because all the statutory elements of grand theft 

are subsumed by the statutory elements of organized fraud). Lesser 

included offenses fall within two categories: necessary (or 

necessarily—we have said it both ways6) and permissive. Sanders, 

6. Compare Coicou v. State, 39 So. 3d 237, 242 (Fla. 2010)

(“The question presented here requires us to determine whether 

attempted second-degree murder is either a necessary or permissive 

lesser-included offense of attempted first-degree felony murder.”) 

with State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986) (“A 

‘necessarily lesser included offense’ is, as the name implies, a lesser 

offense that is always included in the major offense.”).
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944 So. 2d at 206. “Necessarily lesser included offenses are those 

offenses in which the statutory elements[7] of the lesser included 

offense are always subsumed within those of the charged offense.” 

Id. In other words, every element of the lesser offense is always also 

an element of the greater. See, e.g., State v. Terry, 336 So. 2d 65, 

67 (Fla. 1976) (explaining that elements are subsumed when “the 

burden of proof of the major crime cannot be discharged[] without 

proving the lesser crime as an essential link in the chain of 

evidence”). If a defendant is found to have committed all the 

elements of a greater crime, he has necessarily committed all the 

elements of a lesser crime, because “the latter is an inherent 

component of the former.” Roberts v. State, 242 So. 3d 296, 299 

(Fla. 2018) (quoting State v. Weller, 590 So. 2d 923, 926 (Fla. 

1991)).

7. An element is a component of a charged offense that a jury

must find proven beyond a reasonable doubt to convict a defendant. 

See In re Winship, 397 U.S. 358, 363 (1970) (quoting Davis v. United 

States, 160 U.S. 469, 493 (1895) (“No man should be deprived of his 

life under the forms of law unless the jurors who try him are able, 

upon their consciences, to say that the evidence before them is 

sufficient to show beyond a reasonable doubt the existence of every 

fact necessary to constitute the crime charged.”)).
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For example, theft and robbery both consist of the taking of 

property of another with intent to temporarily or permanently 

deprive that person of the property. § 812.13, Fla. Stat. (2020);

§ 812.014, Fla. Stat. (2020). An unlawful taking with intent to 

deprive is sufficient to prove larceny. McCloud v. State, 335 So. 2d 

257, 258 (Fla. 1976). Robbery requires, in addition, the unlawful 

taking to occur by “use of force, violence, assault, or putting in 

fear.” § 812.13(1), Fla. Stat. (2020). We have explained that “[a]ny

degree of force suffices to convert larceny into a robbery. Where no 

force is exerted upon the victim’s person, as in the case of a 

pickpocket, only a larceny is committed.” McCloud, 335 So. 2d. at 

258-59; see also Terry, 336 So. 2d at 67 (holding that to prove 

beyond a reasonable doubt that a defendant committed a robbery, 

the state must necessarily also prove larceny, because every 

robbery necessarily includes a larceny). So, larceny is a necessarily 

lesser included offense of robbery. State v. Bruns, 429 So. 2d 307, 

310 (Fla. 1983) (“Larceny is necessarily included in the crime of 

robbery.”).

Similarly, “[a]ttemped manslaughter by act is a necessarily 

lesser included offense of attempted second-degree murder because 
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attempted second-degree murder contains all of the elements of the 

crime of attempted manslaughter by act.” Walton v. State, 208 So. 

3d 60, 64 (Fla. 2016). Likewise, “[t]he elements of manslaughter are 

always subsumed within the elements of second-degree felony 

murder because both offenses require some action by the defendant 

that ultimately causes the victim’s death.” Dean v. State, 230 So. 

3d 420, 423 (Fla. 2017). Second-degree felony murder additionally 

requires that a defendant have committed an enumerated felony.

Id.

A permissive, or “category two,” lesser included offense exists 

when “the two offenses appear to be separate [on the face of the 

statutes], but the facts alleged in the accusatory pleadings are such 

that the lesser [included] offense cannot help but be perpetrated 

once the greater offense has been.” Sanders, 944 So. 2d at 206 

(alteration in original) (quoting State v. Weller, 590 So. 2d 923, 925 

n.2 (Fla. 1991)). It is, in other words, at least in part a function of 

how a case is charged and what facts are alleged that results in two 

offenses being related to each other this way.
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B

The rule that a jury be allowed to find a defendant guilty of a 

lesser included offense “originally developed as an aid to the 

prosecution in cases in which the proof failed to establish some 

element of the crime charged.” Beck v. Alabama, 447 U.S. 625, 633 

(1980); see also Keeble v. United States, 412 U.S. 205, 208 (1973)

(“[T]he lesser included offense doctrine developed at common law to 

assist the prosecution in cases where the evidence failed to 

establish some element of the offense originally charged[.]”). But 

courts have long recognized that a lesser included offense “can also 

be beneficial to the defendant because it affords the jury a less 

drastic alternative than the choice between conviction of the offense 

charged and acquittal.” Beck, 447 U.S. at 633. As the United 

States Supreme Court has explained, “[w]here one of the elements 

of the offense charged remains in doubt, but the defendant is 

plainly guilty of some offense, the jury is likely to resolve its doubts 

in favor of conviction.” Id. at 634. Allowing a “third option” to 

convict a defendant of a lesser included offense “ensures that the 

jury will accord the defendant the full benefit of the reasonabledoubt standard.” Id.
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State courts, including ours, “have unanimously held that a 

defendant is entitled to a lesser included offense instruction where 

the evidence warrants it.” Id. at 636; see also Terry, 336 So. 2d at 

67 (“Therefore, if the trial judge . . . found sufficient evidence to 

instruct the jury on the major offense of assault with intent to 

commit murder in the first degree, he should have instructed the 

jury on the necessarily included lesser offense of bare assault.”). 

We have long required an instruction for any lesser offense “all the 

elements of which are alleged in the accusatory pleadings and 

supported by the evidence adduced at trial.” State v. Weller, 590 

So. 2d 923, 926 (Fla. 1991). We have also held that, “[o]nce the

judge determines that [an] offense is a necessarily lesser included 

offense, an instruction must be given.” State v. Wimberly, 498 So. 

2d 929, 932 (Fla. 1986). Under Florida Rule of Criminal Procedure 

3.510(b), as interpreted by our Court in Wimberly, a trial judge “has 

no discretion in whether to instruct the jury on a necessarily lesser 

included offense.” Knight v. State, 286 So. 3d 147, 154 (Fla. 2019) 

(quoting Wimberly, 498 So. 2d at 932).

Our standard jury instructions and the schedule of lesser 

included offenses are promulgated and updated by the Supreme 
- 16 -

Court Committee on Standard Jury Instructions in Criminal Cases, 

created by this Court. See In re Amendments to Fla. Rules of Jud.

Admin., Fla. Rules of Civ. Proc., & Fla. Rules of Crim. Proc.—

Standard Jury Instructions, 45 Fla. L. Weekly S88, S88 (Fla. Mar. 5, 

2020). The Committee is “authorized to develop and approve, by 

two-thirds vote, new and amended standard jury instructions to be 

published for use.” Id. at S88. Prior to the recent change, the 

Committee prepared new and amended standard jury instructions, 

and “report[ed] those instruction changes to the Court, which, in 

turn, authorize[d] the instructions for publication and use in a 

written opinion.” Id. at S88. In cutting the Court’s involvement in 

development and authorization of standard jury instructions, we 

recognized the two-step process as cumbersome, and that “some 

wrongly believe that by authorizing for publication and use 

standard instructions prepared by the committees, the Court has 

ruled on the legal correctness of those instructions.” Id. at S88.

Before our work through the Committee, Florida courts were 

not restricted to two classes of lesser included offenses. It was once 

our law that lesser included offenses were divided into four 

categories: (1) crimes divisible into degrees, (2) attempts to commit 
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offenses, (3) attempts necessarily included in the offense charged, 

and (4) offenses which may or may not be included in the offenses 

charged, depending on the accusatory pleading and the evidence. 

Brown v. State, 206 So. 2d 377, 381 (Fla. 1968). Our decision in 

Brown, however, “required instructions to the jury for offenses for 

which there [was] no support in the evidence and no argument by 

counsel, and as a result . . . caused jury confusion.” In re Use by 

Trial Cts. of Standard Jury Instructions in Crim. Cases, 431 So. 2d 

594, 597 (Fla. 1981). Nine years after Brown, “this Court requested 

the committee to revise and modify the instructions to make them 

more easily understood by citizen jurors, to consider the approval of 

instructions and a handbook for a grand jury, and to establish a 

schedule of lesser included offenses.” Id. at 595. The Committee 

recommended consolidating the Brown categories into two groups: 

(1) offenses necessarily included in the offense charged, depending 

on the accusatory pleading and the evidence, including all attempts 

and some lesser degrees of offenses, and (2) offenses which may or 

may not be included in the offense charged, depending on the 

accusatory pleading and the evidence, including all attempts and 

some lesser degrees of attempts. In re Use by Trial Cts. of Standard 
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Jury Instructions in Crim. Cases, 431 So. 2d at 596. The Committee 

also created a schedule of lesser included offenses which reflected 

the two new categories. Id. at 597. We adopted the Committee’s 

proposal, explaining that “[t]he schedule of lesser included offenses 

is designed to be as complete a listing as possible for each criminal 

offense.” Id. The schedule has always been intended to be “an 

authoritative compilation upon which a trial judge should be able to 

confidently rely.” Id.

Of course, “the Schedule of Lesser Included Offenses included 

in the Florida Standard Jury Instructions is not the final authority 

on lesser included offenses.” Williams v. State, 957 So. 2d 595, 599 

(Fla. 2007) (rejecting a defendant’s objection to an instruction on a 

lesser offense on the basis that it was missing from the schedule of 

lesser included offenses). Trial courts have the “responsibility to 

determine and properly instruct the jury on the prevailing law.” 

Standard Jury Instructions in Crim. Cases (95-1), 657 So. 2d 1152, 

1153 (Fla. 1995). To fulfill this responsibility, “[t]he standard jury 

instructions appearing on The Florida Bar’s website may be used by 

trial judges in instructing the jury in every trial to the extent that 

the instructions are applicable,” but if the court “determines that an 
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applicable standard jury instruction is erroneous or inadequate . . . 

the judge shall modify the standard instruction or give such other 

instruction as the trial judge determines to be necessary to instruct 

the jury accurately and sufficiently on the circumstances of the 

case.” Fla. R. Gen. Prac. & Jud. Admin. 2.580.8

C

Applying these principles to the question before us, it becomes 

clear that sexual battery is not a necessarily lesser included offense 

of capital sexual battery, because the elements of sexual battery are 

in fact never subsumed within the elements of capital sexual 

battery.

A sexual battery charge requires that a victim be twelve or 

older, whereas a capital sexual battery charge requires that a victim 

be younger than twelve. Because the elements of sexual battery, 

the lesser offense, are not “always subsumed within those of the 

8. Our amendment to rule 2.580, Standard Jury Instructions, 

further adds, “If the trial judge modifies a standard jury instruction 

or gives another instruction, upon timely objection to the 

instruction, the trial judge shall state on the record or in a separate 

order the respect in which the judge finds the standard instruction 

erroneous or inadequate or confusing and the legal basis for varying 

from the standard instruction.” Fla. R. Gen. Prac. & Jud. Admin. 

2.580.
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charged offense,” capital sexual battery, it was incorrect for the 

Supreme Court Committee on Standard Instructions in Criminal 

Cases to declare sexual battery as a category one necessarily lesser 

included offense of capital sexual battery. Sanders, 944 So. 2d at

206.

Nor, in this case, does sexual battery qualify as a permissive 

lesser included offense as to count I. It takes two steps to reach 

this conclusion. We took the first step above: when we compare the 

elements of the offenses, we find that the elements of the lesser 

offense are not entirely contained within the elements of the greater, 

because a victim cannot simultaneously be under the age of twelve, 

as required for one offense, and over that age, as required for the 

other. But, and here is the second step, none of the facts alleged or 

evidence introduced at trial, including the ambiguities in the 

timeline of the alleged crimes, rebut the undisputed evidence that 

T.W. was younger than twelve during the period covered by count I.

Because count I only covered the time before T.W. turned 

twelve, it was impossible for the jury to find that Allen had 

committed sexual battery in that count of conviction, as at no point 

during the time covered in count I was the victim twelve or older.
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Instruction on noncapital sexual battery as a permissive lesser 

included offense was, however, acceptable as to count III, which 

charged Allen with capital sexual battery. The fact-specific element 

of the permissive lesser offense was whether T.W. was twelve at the 

time of the sexual battery in this count. Count III covered a period 

between when T.W. was eleven and almost thirteen years old. To 

find Allen guilty, the jury was required to find beyond a reasonable 

doubt that Allen had battered T.W. when she was eleven, twelve, or 

both. The charging document alleged that Allen unlawfully 

committed sexual battery on “a person less than twelve years of 

age,” and while the state introduced evidence to support the 

allegation that Allen battered T.W. when she was eleven, a 

reasonable jury could have also found that the incident had 

occurred when she was twelve. Therefore, while the trial judge 

might have given the same instruction as to counts I and III, it was 

no abuse of discretion to instruct the jury on sexual battery as a 

lesser included offense of capital sexual battery as to count III, for 

the jury may have found that Allen had assaulted T.W. when she 

was twelve, but not when she was eleven.
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D

Our conclusion today squares with the plain meaning of 

section 794.011, Florida Statutes (2018). Florida’s sexual battery 

statute provides that someone eighteen years of age or older who 

commits sexual battery upon a person less than twelve years of age 

commits a capital felony. § 794.011(2)(a), Fla. Stat. (2018).

Conversely, the statute provides that someone eighteen years of age 

or older who commits sexual battery upon a victim eighteen years of 

age or older commits a felony of the second degree. § 794.011(5)(a), 

Fla. Stat. (2018). The structure and language of the statute mean 

that those who commit sexual battery upon a person under the age 

of twelve are treated more harshly than those who commit the same 

crime upon persons not in that statutorily prescribed age group. In 

that respect, this provision is similar to Florida’s battery statute,

which makes it a third-degree felony to commit battery upon a 

victim sixty-five years old or older what would be misdemeanor 

battery on a younger adult. § 784.08(2)(c), Fla. Stat. (2020).

The special protections that the statutes afford to younger 

children who are sexually battered and older adults who are victims 

of simple battery illustrate the problem with Allen’s argument that, 
- 23 -

like the value of property stolen in a theft charge9 or the quantity of 

narcotics trafficked,10 age is a one-way street: the older you are, the 

less culpable a perpetrator is for a battery upon you. It is not so. 

The statute at issue here does not present a gradient of culpability, 

but a binary choice; for its purposes, either a victim is under twelve, 

or he or she is not. Here the law offers special protection to the 

young, elsewhere to the old. We have upheld the permissibility of 

that legislative choice over the years. See Adaway v. State, 902 So. 

2d 746, 751 (Fla. 2005) (sexual battery is “especially harmful to 

young victims” and “[e]ven when [child sexual abuse] leaves no 

physical scars, it can create emotional damage that lasts a 

lifetime.”) (quoting Gibson v. State, 721 So. 2d 363, 368 (Fla. 2d 

DCA 1998)).

III

Because sexual battery is not a necessarily lesser included 

offense of capital sexual battery, we answer the certified question in 

the affirmative and approve the decision of the First District Court 

of Appeal.

9. See § 812.014(2), Fla. Stat. (2020).

10. See § 893.135, Fla. Stat. (2020).
- 24 -

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and 

GROSSHANS, JJ., concur.

LABARGA, J., concurs with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

LABARGA, J., concurring.

While I agree that the crime of sexual battery is not a 

necessarily lesser included offense of capital sexual battery, I write 

to underscore that in a case where the age of the victim is in 

dispute, the defendant would be entitled to a jury instruction on 

sexual battery as a permissive lesser included offense.

Application for Review of the Decision of the District Court of Appeal

Certified Great Public Importance

First District - Case No. 1D19-1315

(Bay County)

Jessica Yeary, Public Defender, and Victor Holder, Assistant Public 

Defender, Second Judicial Circuit, Tallahassee, Florida,

for Petitioner

Ashley Moody, Attorney General, and David Welch, Assistant 

Attorney General, Tallahassee, Florida,

for Respondent