DueProcess
Does a trial court commit fundamental error when it instructs a jury regarding both 'Penile/Vaginal intercourse' unlawful sexual activity with specific minor and 'Penetration or Union with mouth of victim' unlawful sexual activity with specified minor when the information charged only one form of the crime and evidence was presented and argument was made regarding the alternative form?
QUESTION(S) PRESENTED . 2013 Florida Statutes §794.05(1) unlawful sexual activity with a minor: makes it a criminal offense for a person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in §775.082, §775.083, or §775.084. As used in this section, “ sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. The question of great public importance is: 1) Does a trial court commit fundamental error when it instructs a jury regarding both “Penile/Vaginal intercourse” unlawful sexual activity with specific minor and “Penetration or Union with mouth of victim” unlawful sexual activity with specified minor when the information charged only one form of the crime and evidence was presented and argument was made regarding the alternative form? 2) Does the information, verdict form, and the jury instructions have to correlate to contain a lawful conviction?