Palumbo v. State
Palumbo v. State
Opinion of the Court
ON MOTION FOR WRITTEN OPINION
We grant the motion for written opinion and withdraw the previously issued decision, which affirmed without opinion, citing State v. Pate, 656 So.2d 1323 (Fla. 5th DCA 1995).
Appellant was convicted by jury of capital sexual battery and lewd or lascivious molestation of a young girl.
We deny Appellant’s motions for rehearing and certification of a question of great public importance.
AFFIRMED.
. The trial court vacated the conviction for lewd or lascivious molestation, concluding that it had been subsumed in the sexual battery count.
Concurring Opinion
concurring specially.
The victim testified that Appellant removed his clothes, her clothes and then held her by the shoulders while he pushed her up and down, repeatedly causing his penis to come in contact with her “vagina,” until he apparently ejaculated (the young victim testified that she felt something slimy on her vagina). Although she felt his penis hit her “vagina” repeatedly, she admitted that it did not go “inside her vagina.”
Although a dictionary might be a reliable resource to determine the meaning of a word used in a statute, just like any other tool of statutory construction, its definition is by no means conclusive. Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla. 1995). Dictionaries represent the opinion of the author(s) of the meaning of a word without regard to the particular context in which the word is used. Context is as important as the definitions of the individual words in determining what is meant by a statute. As Judge Learned Hand said, “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934). Some dictionaries have the objective to record and report the way words are actually used in our society; others tend to prescribe proper usage, thereby perpetuating traditional definitions, even in the face of wide-spread changes in use.
The language used in a statute is an important key to what the legislature intended because we presume that the legislature knew what the word meant and intended to employ that meaning. When a particular word is susceptible to more than one meaning, however, we must look at context and other indicia of legislative intent, such as the history of the statutory scheme and our own experiences, logic and common sense. State v. Burris, 875 So.2d 408, 410 (Fla. 2004); State v. Hodges, 614 So.2d 653, 654 (Fla. 5th DCA 1993). Our ultimate responsibility in construing any statute is to effectuate the intent of the legislature. B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1051 (Fla. 2004) (purpose in construing statutory provision is to give effect to “polestar” of legislative intent). To do so, we must give effect to all of the language of the statute and should not adopt a construction that thwarts the clear intent of the legislature or leads to an absurd or unreasonable result. Burris, 875 So.2d at 410. It is not our function to write a better statute, only to give a common sense construction to the one we are asked to construe.
There is no question that the word “vagina” is susceptible to two different meanings. One is a technical, medical definition that we might expect to see used in the context of a medical journal where the technical distinction between the vagina and other parts of the female sex organ might be important. The other definition is the broader everyday definition used by most people to describe the female sex organ as a whole. Our sister court reject
Given these two potential definitions, we must resort to other statutory construction tools to determine what the legislature intended when it used the word “vagina” in the context of this particular statute. The statute does not pertain to medical procedures or other technical subjects so there is no reason to believe that the legislature intended to employ a technical definition. We know from the historical context of the rape and sexual battery statutes, that by adding the phrase “in union with,” the legislature intended to expand the common law crime of rape to include direct physical contact, without the need for penetration. Recognizing its duty to give effect to the “in union with” language of the statute, the Richards court concluded that the state may still prove in-union-with-the-vagina battery by proving penile contact with the vagina, as defined in the technical sense. Of necessity, this would require the state to prove penetration of the external portion of the female sex organ to the point of contact with the vagina. I can hardly conclude that such an inconsequential effect is intended by this statutory language. It’s just not logical to me that the legislature would go through this semantic exercise just to get back to the point of beginning — a prohibition against penetration of the female sex organ by the male sex organ.
It is also illogical to me that the legislature consciously intended to expand the traditional crime of rape by defining sexual battery to include oral union with a clitoris or union of the penis with the mouth of the victim, but at the same time narrow the traditional definition by not including penile union with a clitoris. The statutory evolution of this crime since its common law inception evinces a legislative intent to broaden traditional concepts of rape and sexual battery, not to do the contrary.
The rule of lenity does not compel a contrary conclusion. Not all ambiguity results in a defense victory. See Smith v. United States, 508 U.S. 223, 239-40, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (“The mere possibility of ... narrower construction ... does not by itself make the rule of
. Rickie Sonpal, Old Dictionaries and New Textualists, 71 Fordham L. Rev. 2177, 2180 (2003).
. See, e.g., Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275 (Summer 1998); Clark D. Cunningham, Judith N. Levi, Georgia M. Green & Jeffrey P. Kaplan, Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994) (book review).
. This point is illustrated with anatomical words alone: To describe a person by saying that he or she has no heart, a big mouth, a big head, or a lead foot seldom is intended to pertain to an anatomical characteristic.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.