Hansen v. State

421 So. 2d 504 (1982)

Erling Knud Ove HANSEN, Jr., Petitioner, v. STATE of Florida, Respondent.

No. 61315.

Supreme Court of Florida.

October 28, 1982.

Baya Harrison, III, Tallahassee, for petitioner.

Jim Smith, Atty. Gen. and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for respondent.

BOYD, Justice.

This cause is before us to review a decision of the District Court of Appeal, First District, State v. Hansen, 404 So. 2d 199 (Fla. 1st DCA 1981). The decision directly and expressly conflicts with State v. Carroll, 378 So. 2d 4 (Fla. 4th DCA), cert. denied, 385 So. 2d 761 (Fla. 1980). We have jurisdiction to resolve this conflict. Art. V, § 3(b)(3), Fla. Const.

Petitioner was charged with sexual battery upon a person eleven years of age or younger in violation of section 794.011(2), Florida Statutes (1979). The trial court granted petitioner's motion to dismiss the indictment on the ground that since the victim was eleven years and three months of age at the time of the crime, she was not a person eleven years of age or younger as provided for in the statute. The trial court relied on State v. Carroll, which held that the statute is ambiguous and therefore should be construed in favor of the accused. On appeal, the district court reversed and remanded for trial, holding that the statute is clear.

We find the reasoning expressed in the opinion of the district court to be correct and we adopt it as our own. The decision of the first district in Hansen is accordingly *505 approved. The decision of the fourth district in Carroll is disapproved.

It is so ordered.

ALDERMAN, C.J., and ADKINS and OVERTON, JJ., concur.

McDONALD, J., dissents.