The materials in this section were generated by a state attorney's error in charging a defendant with "the wrong crime." In 1987, Lee Curtis Davis was charged with sexual battery against a physically helpless person, even though it was admitted that the victim screamed for help and tried to push away her attacker. Davis's attorney objected that the wrong law was being used, but the objection was overruled by Circuit Judge J. Dale Durrance. The trial proceeded, and Davis was convicted and sentenced to life in prison. We begin with the decision of the Court of Appeal ( Davis v. State of Florida, 538 So. 2d 515 [Fla. App. 2 Dist. 1989]).
Defendant was convicted of sexual battery on physically helpless 13-year-old victim before the Circuit Court, Polk County, J. Dale Durrance, J.; he appealed.
DANAHY, Acting Chief Judge.
The appellant, Lee Curtis Davis, appeals his convictions and sentences for two counts of sexual battery on a physically helpless 13-year-old victim, violations of section 794.011, Florida Statutes ( 1985) [see text below]. He presents three issues. We are compelled to reverse on the first issue. Accordingly, we need not address the remaining points on appeal.
The facts can be simply summarized as follows. The appellant is the father of a physically handicapped daughter who has muscular dystrophy and is permanently confined to a wheelchair. She does not have the use of her legs but possesses strong arms from the use of her wheelchair and in all other ways is not handicapped. The charges against the appellant are based on an episode of vaginal and oral penetration of his daughter which occurred when they were alone together.
At trial, the victim testified that when her father took her into the bedroom and put her on the bed to begin the incident, she resisted by telling him that she did not want to do this and struck at him with her hands while calling out for help. Other witnesses for the state testified that, although the victim was physically handicapped in her lower body, she had no other problems regarding her