Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
It is possible to get a sexual battery with a victim under the age of 12 reduced or substituted for another charge through the plea bargaining process. However, sex offenses are very political in nature, and as of late, there has been a lot of attention on sex offenses generated by the Me Too movement. As a result, is it virtually impossible to get a fair trial if the defendant happens to be male, and plea bargaining has become substantially more difficult. When it comes to plea bargaining, the stronger the defense can make the legal case with pre-trial motions, discovery, and other aspects of traditional criminal defense, the better the plea bargaining opportunities.
If the state is not able to prove one of the four elements, then there may be a reduction in charge. If the state cannot prove all three elements in a three-element capital sexual battery case, then that would substantially impact the decision-making when it comes to going to trial. The state will want to talk to the complaining witness. If the complaining witness is a minor, then the state will want to talk to their family as well. In many cases, family members of the complaining witness will become involved regardless of his or her age.
Many people are unclear about the distinction between a reduction in charge and a substitution of charge. Reductions specifically relate to what are called “lesser-included offenses.” For sexual battery of a capital nature, a category-one offense that is a lesser-included offense is simple battery. For example, if the state is unable to show that the complaining witness was under the age of 12 and that the contact made was sexual in nature, then that would give rise to a category-one lesser-included offense of simple battery under 784.03. Since category one is a mandatory lesser-included offense, there is a different set of jury instructions that would have to be given. I once handled a sexual battery case involving two adults, and the jury found my client not guilty of sexual battery, but guilty of simple battery; this surprised everyone in the courtroom.
A category-two lesser-included offense is one where the judge has a lot of discretion simply because it is not a mandatory instruction. In other words, there has to be specific evidence in a specific case going to trial that justifies a category-two instruction. These category-two instructions under capital sexual battery include solicitation by a person in familial authority. This is a sex offense under 794.011(8)(c), but it is not a capital offense that has a mandatory life sentence. The second of these five category-two lesser-included offenses is an attempt to do something, which is found in Florida Statute section 777.04(1). Additionally, there is simple second-degree misdemeanor assault, which is a category-two lesser-included offense found under Florida Statute section 784.011 as opposed to 794, which is a sex offense. Section 784 is the assault and battery statute and would come into play when evidence may show a sexual battery, but when it may also be arguable that the evidence only shows that there was a simple misdemeanor assault. In cases where the evidence during trial justifies it, it is an optional jury instruction for assault, and the same is true for aggravated assault under 784.021(1)(a) and aggravated battery under 784.045(1)(a).
With regard to category-two lesser-included offenses, the key is in understanding that they are not guaranteed to be given if someone goes to trial on a capital sexual battery case, and that many of these offenses are quite serious, while others are not. For example, 784.011 simple assaults carry a maximum of 60 days in jail, a $500 fine, and a maximum probation of six months. That is a drastic difference from a sentence involving life imprisonment or some type of category-two lesser-included offense such as solicitation, which has a much more serious set of penalties including sexual offender designation registration and probation upon release from prison.
While aggravated battery does not have a sex offense designation, it does carry a maximum of 15 years in prison and automatic, mandatory scores under the Florida punishment codes point system. Finally, it should be noted that when it comes to plea bargaining, sometimes we are looking at lesser-included offenses. In one case, we may be looking for a lesser-included offense of solicitation even though that is a sex offense. This is because the evidence is so problematic from a defense prospective and the odds of success at trial are so remote. For example, a defendant may give a statement against their legal interest, yet an example that is commonly used is the fourth of the five category-two lesser-included offenses, which is aggravated assault. I have handled numerous cases wherein litigation lasted for six months to a year. Ultimately, the cases were resolved with an aggravated assault, substitution of charge, a probationary sentence, no incarceration, and without even a felony conviction.
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