Supreme Court of Florida
                                    ____________

                                    No. SC11-2292
                                    ____________

                             GILBERT DUDLEY, III,
                                  Petitioner,

                                          vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                    [May 15, 2014]

PER CURIAM.

      This case is before the Court for review of the decision of the Fifth District

Court of Appeal, sitting en banc, in State v. Dudley, 

, 747 (Fla. 5th

DCA 2011), which reversed the trial court’s dismissal of the criminal charges

against the defendant, Gilbert Dudley, III, for sexual battery on a person defined by

Florida statute as “mentally defective,” and ordered that the jury’s guilty verdicts

be reinstated. The Fifth District certified that its decision directly conflicts with

the decision of the First District Court of Appeal in Mathis v. State, 

(Fla. 1st DCA 1996), as to the proper interpretation of the statutory term “mentally
defective.” 1 

. We have jurisdiction. See art. V, § 3(b)(4),

Fla. Const.

      For the reasons we explain, we agree with the Fifth District in Dudley that

the First District’s decision in Mathis improperly equated the term “mentally

defective” with the distinct concepts of legal insanity and competence to testify.

We also agree with the Fifth District that the statutory definition of “mentally

defective” does not, as the First District’s decision in Mathis suggests, require “a

total or complete lack of mental capacity or understanding.” 

. We therefore approve the Fifth District’s decision in Dudley, consistent with

the analysis we adopt in this opinion, and disapprove the First District’s statutory

interpretation in Mathis.

                    FACTS AND PROCEDURAL HISTORY

      The State charged Dudley in a two-count information with unlawful

commission of a sexual battery on a “mentally defective” person over the age of

twelve, in violation of section 794.011(4)(e), Florida Statutes (2007), which

provides as follows:




       1. In its analysis, the Fifth District conflated the statutory term “mentally
defective” with the term “mentally deficient.” The term “mentally deficient,”
referenced by the Fifth District in its opinion, is not contained in the statute or in
Mathis. See § 794.011(1)(b), Fla. Stat. (2007); 

. The
Fifth District’s use of the incorrect term appears to have been inadvertent.


                                         -2-
            (4) A person who commits sexual battery upon a person 12
      years of age or older without that person’s consent, under any of the
      following circumstances, commits a felony of the first degree,
      punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s.
      794.0115:
            ....
            (e) When the victim is mentally defective and the offender has
      reason to believe this or has actual knowledge of this fact.

The term “mentally defective” is defined by section 794.011(1)(b), Florida Statutes

(2007), as “a mental disease or defect which renders a person temporarily or

permanently incapable of appraising the nature of his or her conduct.”

      During trial, the victim’s mother testified that she met Dudley while he was

an assistant minister at her church. Shortly after she separated from her husband,

the victim’s mother and Dudley began dating, and Dudley subsequently moved

into the mother’s home, where the victim, who was in her late teens, also resided.

Dudley watched after the victim, took her to medical appointments, and drove her

home from school. Both the victim and her mother testified that the victim viewed

Dudley as a father figure.

      After Dudley had been living in the home for some time, the victim told her

mother that Dudley had been having sexual intercourse with her. The victim

testified that Dudley forced her to remove her clothes and threatened to punch her

if she refused to comply. She stated that Dudley had forced his “popsicle” into her

vagina and anus while he touched her breasts. She further testified that during

intercourse, Dudley asked her, “Do you want to have a boyfriend? Come on, baby,

                                        -3-
let me teach you how to do this.” The victim also recounted another episode in

which Dudley again placed his “popsicle” in her vagina and continued intercourse

to the point of ejaculation. When asked why she did not immediately inform her

mother of the conduct, the victim testified that Dudley had promised to take her to

the park if she kept these acts a secret.

      In addition, the victim’s mother testified that, at the request of an

investigator, she met Dudley for dinner while wearing a recording device. During

dinner, Dudley admitted that he had engaged in intercourse with the victim twice,

but claimed that the victim had made the sexual advances toward him.

      The State also presented a videotaped interview between an investigator and

Dudley. During the interview, Dudley’s recollection of the details of his sexual

encounters with the victim varied greatly from those described in the testimony of

the victim. In particular, he characterized the victim as the sexual aggressor, who

on multiple occasions attempted to perform oral sex on him either without his

consent or against his direction. On one occasion, Dudley claimed that he was

awakened by the victim performing oral sex on him in his bedroom. On another

occasion, he contended that while watching television in the living room, the

victim “all of the sudden . . . got on her knees and started pulling my pants back

and started [performing oral sex].” On this occasion, Dudley asserted that after he

stopped the victim from performing oral sex, she led him into her bedroom and


                                            -4-
forced him to engage in intercourse with her. Despite initially claiming that he

immediately removed his penis after inserting it into the victim’s vagina, Dudley

later admitted during the interview that he ejaculated inside both the victim’s

mouth and vagina.

      As to the victim’s mental limitations, the Fifth District set forth the pertinent

testimony from trial as follows:

              First, the State presented testimony from the victim. It is clear
      from this testimony that the victim, who was twenty-one years old at
      the time of trial, has a mental and developmental age far below her
      physical age, and that her ability to appraise the nature of many things
      is severely limited. For example, the victim repeatedly referred to
      Dudley’s sexual organ as his “popsicle,” and testified to the times
      when Dudley put his “popsicle” inside her. She explained that she did
      not want to do this but that “he told me if I don’t do it, he was gonna
      punch me.” When asked why she did not immediately tell her mother
      about the incidents, she said that Dudley promised to take her to the
      park if she did not tell her mother. The victim’s word choices and
      phraseology throughout the testimony reflect the mental ability of a
      young child.
              Second, the victim’s special education teacher, Ms. Hook, had
      worked with the victim for four or five years and also served as the
      victim’s Special Olympics coach. Ms. Hook testified that the victim
      was in a class for the mentally disabled who have IQs lower than
      seventy. Ms. Hook testified that her students, including the victim,
      need constant supervision as they are not capable of self-direction,
      and have significant cognitive limitations. Ms. Hook recounted
      specific instances of the victim’s limitations. For example, the victim
      does not understand the concept of differing valuations of money or
      the relative value of things. Ms. Hook explained that if the victim had
      a $5 bill, the victim could not understand why she could not use the
      bill to purchase a $13 CD. Similarly, Ms. Hook testified that the
      victim does not understand abstract concepts such as “in a little while”
      or “usual.” She further testified that the victim could not rationally



                                         -5-
process and express her emotions, but would simply cry or stomp her
feet if she did not like something.
        Third, the victim’s mother testified that her daughter has mild
cerebral palsy, has been diagnosed with bi-polar disorder and was
simply “not like everyone else.” She explained that if the victim were
ill, she would not know to take medication even if a doctor had
provided her with it; that she cannot cook because she could burn the
house down; that if she observed someone ill and incapacitated, she
would not know to call “911” or otherwise seek help, but would
probably just watch the person lie there. The mother further described
her daughter’s mind as “very childlike,” explaining that she does not
know how to count money; does not understand the basics of personal
hygiene; is afraid of the dark; and, cannot be left alone for any
extended period of time because of her need for constant monitoring.
She explained that the victim will never be able to drive due to her
limited mental capacity, must generally be separated from other
children due to the concern that they would pick on her or persuade
her to do inappropriate things, and that she cannot take a bus by
herself. According to her mother, the victim is able to do laundry for
the family, but only after much assistance, and is able to keep her
room clean but needs prompting. The victim likes to watch Disney
videos; and, she likes to shop and dance. The victim’s room is
decorated in a Tinkerbell theme. The victim has never had a paying
job.
        The mother put the victim on birth control in the form of Depo-
Provera shots. The mother began taking the victim to get these shots
after an incident with an emotionally handicapped young man which
caused the mother to worry about her daughter being taken advantage
of and getting pregnant. The victim has been committed to a mental
institution four times.
        Finally, the State presented the testimony of Dr. Malcolm J.
Graham, III, a psychologist who does evaluations for a number of
different governmental agencies and who has been qualified as an
expert witness in court many times. He testified at length as to the
victim’s mental limitations; opined that the victim is mentally
retarded, in the moderate range; reported that the victim scored sixty-
one on her verbal IQ scale, fifty on her performance IQ, and fifty-one
on her full scale, putting her at less than one percentile. In other
words, at least ninety-nine percent of the people who take the test
scored at a higher intelligence level than the victim. Dr. Graham

                                 -6-
      testified that the victim could not remember for five minutes even one
      of four words that he asked her to remember during a conversation;
      that she cannot name one single current event happening anywhere in
      the world; and, that she cannot perform even the simplest arithmetic
      calculations, such as 3 + 1. He opined that the victim will always
      need to be in a highly structured environment where she will be cared
      for, as she will never be able to function independently. Significantly,
      Dr. Graham testified that in his professional opinion the victim suffers
      from a mental defect that renders her “permanently incapable of
      appraising the nature of her conduct” in the context of engaging in
      sexual intercourse—the very definition of “mentally defective”
      contained in the statute pursuant to which the State prosecuted
      Dudley.
              It was undisputed that Dudley was fully aware of the victim’s
      mental condition. After becoming romantically involved with the
      victim’s mother, Dudley moved in with the family and had become
      “like a father figure” to the victim. At some point, Dudley lost his
      job, and then became the primary caregiver for the victim when her
      mother was at work. It was Dudley who had taken the victim to her
      appointment with Dr. Graham for a disability benefits evaluation; and,
      it was Dudley who initially gave Dr. Graham a full background and
      factual explanation of the victim’s mental limitations, before Dr.
      Graham began his own testing and evaluation. Dudley also admitted
      to his two sexual encounters with the victim, although he testified that
      the victim “came on to” him both times. He also testified that he
      believes the victim can work and do some things for herself, and that
      he believes the victim to be more intelligent than most others
      recognize.

(footnote omitted).

      At the conclusion of the trial, the jury returned guilty verdicts on both counts

of sexual battery on a person defined by statute as “mentally defective.” Shortly

thereafter, the trial court issued an order concluding that the State had not

presented “sufficient credible evidence” to satisfy its burden of proving that the

victim was “mentally defective” beyond a reasonable doubt, as defined by section

                                         -7-
794.011(1)(b). Specifically, the trial court explained that the Fifth District’s

decision in State v. Torresgrossa, 

(Fla. 5th DCA 2001), “applied

the statutory definition of mentally defective that this court believes is appropriate”

in a situation with similar facts to conclude that the alleged victim was not

“mentally defective.” Because the trial court held that the State had failed to prove

an essential element of the crimes charged under section 794.011(4)(e), the trial

court set aside the guilty verdicts and dismissed the charges.

      On appeal, the Fifth District, en banc, unanimously reversed the trial court,

reinstated the guilty verdicts, and directed the trial court to proceed with

sentencing. 

. The Fifth District held that the evidence

presented by the State during trial was “clearly sufficient to support a jury finding

that the victim was mentally defective, as defined by the statute.” 

the trial testimony as to the victim’s mental limitations, the

Fifth District compared the facts of this case with five other Florida appellate cases

and determined that the facts of this case more closely resembled those in Hudson

v. State, 

(Fla. 4th DCA 2006); Schimele v. State, 

(Fla. 4th DCA 2001); and Bowman v. State, 

(Fla. 4th DCA 2000),

in which the mental defectiveness of the victims were held to be sufficiently

established. 

. The Fifth District found distinguishable

the facts in Torresgrossa, 

, which was relied on by the trial court,


                                         -8-
and Mathis, 

, cases in which the Fifth and First Districts held that

the State had not provided sufficient evidence to support a finding that the victim

was “mentally defective.” 

.

      Moreover, the Fifth District rejected the First District’s interpretation of the

statutory term “mentally defective” in Mathis, explaining that “it suggests an

unreasonably narrow reading” of the term. 

District’s concern

stemmed from two aspects of the First District’s analysis in Mathis. See 

52. First, the First District in Mathis found the similarities between the statutory

definition of “mentally defective” and the definition of “insanity” used in Florida

criminal proceedings to be 

. Second, in holding that

the State had not presented sufficient evidence to support a finding that the victim

was “mentally defective,” the First District in Mathis relied heavily on the trial

court’s finding that the victim was competent to testify. See 

Specifically, the First District noted as follows in Mathis:

      No evidence was offered as to the correlation, if any, between IQ and
      “mental and developmental age,” and the ability to understand “the
      nature” of one’s “conduct.” Children having a chronological age
      younger than the alleged victim’s “mental and developmental age”
      have been found to possess a sufficient understanding of the
      difference between the truth and a lie, and the moral obligation to
      relate the former rather than the latter, so as to be competent to testify
      in court. In fact, in this case, the trial court concluded, we believe
      correctly, that the alleged victim was competent to testify.

                                         -9-
      The Fifth District interpreted the First District’s decision in Mathis as

suggesting that if the victim was determined to be competent to testify, a finding of

mental defectiveness was precluded as a matter of law. See 

. The Fifth District disagreed with this analysis, explaining that the

statutory definition of “mentally defective” cannot “reasonably be read to mean a

total lack of mental capacity, as the trial judge in our case seems to have concluded

based upon language in Mathis and Torresgrossa.” 

      Explaining that the statutory definition of “mentally defective,” which

includes the key phrase “incapable of appraising the nature of his or her conduct,” 2

indicates “significantly diminished judgment, but not a complete and total lack of

mental awareness,” the Fifth District disagreed with, and then certified conflict

with, Mathis “to the extent that Mathis can be read as equating ‘mental deficiency’

[sic] with competence to testify, or to mean a total or complete lack of mental

capacity or understanding.” 

District also receded from its earlier

panel decision in Torresgrossa to the extent that it had positively relied on Mathis.

Despite using the term “mentally deficient,” the Fifth District accurately
recognized the operative phrase “incapable of appraising the nature of his or her
conduct” that is part of the statutory definition of “mentally defective” provided in
section 794.011(1)(b).


                                        - 10 -
      The conflict presented to the Court in this case concerns a matter of statutory

interpretation, which is a question of law that is subject to de novo review. See

Raymond James Fin. Servs., Inc. v. Phillips, 

, 190 (Fla. 2013). “A

court’s purpose in construing a statute is to give effect to legislative intent, which

is the polestar that guides the court in statutory construction.” Larimore v. State, 

, 106 (Fla. 2008). “When considering the meaning of terms used in a

statute, this Court looks first to the terms’ ordinary definitions[, which] . . . may be

derived from dictionaries.” Trinidad v. Fla. Peninsula Ins. Co., 

,

439 (Fla. 2013) (quoting Metro Cas. Ins. Co. v. Tepper, 

, 214 (Fla.

2009)).

      Originally enacted in 1974, section 794.011 is Florida’s sexual battery

statute. In this case, Dudley was convicted by a jury of violating subsection (4)(e)

of the sexual battery statute, which provides as follows:

            (4) A person who commits sexual battery upon a person 12
      years of age or older without that person’s consent, under any of the
      following circumstances, commits a felony of the first degree,
      punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s.
      794.0115:
            ....
            (e) When the victim is mentally defective and the offender has
      reason to believe this or has actual knowledge of this fact.

§ 794.011, Fla. Stat. The term “mentally defective,” which is the focal point of our

analysis, is defined by section 794.011(1)(b) as “a mental disease or defect which




                                         - 11 -
renders a person temporarily or permanently incapable of appraising the nature of

his or her conduct.” § 794.011(1)(b), Fla. Stat.

      In its decision below, the Fifth District rejected the First District’s prior

interpretation of the term “mentally defective,” which equated the term with “legal

insanity” and further suggested that anyone with a sufficient mental capacity to

competently testify in a court cannot be found “mentally defective.” 

. Specifically, in 

, the First District

explained that the “similarity” between the statutory definition of “mentally

defective” and the definition of legal insanity used in Florida criminal proceedings

is “apparent.” The First District further stated, in analyzing the legal sufficiency of

the evidence of whether the victim in Mathis was “mentally defective,” that

children having a “chronological age younger than the alleged victim’s ‘mental and

developmental age’ have been found to possess a sufficient understanding of the

difference between the truth and a lie, and the moral obligation to relate the former

rather than the latter, so as to be competent to testify in court.” 

      The Fifth District certified conflict with Mathis on two interrelated issues

concerning the proper interpretation of the statutory term “mentally defective.”

See 

. First, the Fifth District certified conflict “to the

extent that Mathis can be read as equating ‘mental deficiency’ [sic] with

competence to testify.” 

Fifth District certified conflict “to the


                                         - 12 -
extent that Mathis can be read . . . to mean a total or complete lack of mental

capacity or understanding” is necessary for a finding that the victim was “mentally

defective.” 

each conflict issue in turn.

         I. Equating “Mentally Defective” with Competence to Testify

      The first conflict issue concerns the First District’s statutory interpretation in

Mathis, which equated the term “mentally defective” in the sexual battery statute

with the concept of competence to testify. We agree with the Fifth District in

Dudley that the First District’s statutory interpretation of this term was flawed.

      In 

, the First District held that “the evidence

presented was legally insufficient to permit a reasonable jury to find that the

alleged victim was ‘mentally defective’ on the date of the alleged sexual battery.”

In reaching this conclusion, the First District applied the facts of Mathis to a test

for competence to testify, stating as follows:

      On appeal, the state argues that a reasonable juror might infer, from
      the alleged victim’s IQ and “mental and developmental age” some
      fifteen months before the date of the alleged sexual battery, that the
      alleged victim was “mentally defective” on the date of the alleged
      sexual battery. We disagree. No evidence was offered as to the
      correlation, if any, between IQ and “mental and developmental age,”
      and the ability to understand “the nature” of one’s “conduct.”
      Children having a chronological age younger than the alleged victim’s
      “mental and developmental age” have been found to possess a
      sufficient understanding of the difference between the truth and a lie,
      and the moral obligation to relate the former rather than the latter, so
      as to be competent to testify in court. In fact, in this case, the trial
      court concluded, we believe correctly, that the alleged victim was
      competent to testify.

                                         - 13 -


(citations omitted).

      Competence to testify is an entirely different legal concept than the term

“mentally defective,” as defined in the sexual battery statute. In Florida, a person

is disqualified to testify as a witness when the court determines that the person is

“[i]ncapable of expressing himself or herself concerning the matter in such a

manner as to be understood, either directly or through interpretation by one who

can understand him or her,” or “[i]ncapable of understanding the duty of a witness

to tell the truth.” § 90.603, Fla. Stat. (2013).

      As recognized by the Fourth District in 

,

competence to testify and mental defectiveness are distinct concepts that are not

properly equated. In concluding that a finding that the victim was competent to

testify was not inconsistent with a finding of the victim being “mentally defective,”

the Fourth District stated as follows:

             We do not see a problem, as the Mathis court may have, with a
      victim being found able to understand the moral obligation to testify
      truthfully, and still being mentally defective under the statutory
      definition. It is not unusual for a child who is actually or mentally
      five years old to sufficiently understand the moral obligation to tell
      the truth so as to be competent to testify. Telling the truth is a basic
      value of our society which is drummed into the heads of children as
      soon as they are able to reason. The fact that such a child is
      competent to testify, however, is not inconsistent with being mentally
      defective under section 794.011(1)(b), Florida Statutes. Unlike telling
      the truth, the inappropriateness of the type of sexual activity occurring
      in Mathis or this case is not necessarily something which is normally
      discussed with a person who is mentally only five years old.

                                          - 14 -


with the Fourth District in Bowman, which was cited affirmatively

by the Fifth District in its decision below, and conclude that the First District in

Mathis erred in relying on the concept of competence to testify in analyzing

whether a victim falls within the statutory definition of “mentally defective.” We

therefore disapprove the First District’s statutory interpretation in Mathis on this

issue.

         We turn next to the second conflict issue certified by the Fifth District.

           II. An “Unreasonably Narrow Reading” of the Statutory Term
                             “Mentally Defective”

         In addition to disagreeing with the First District’s decision in Mathis on the

basis that the First District improperly equated the statutory term “mentally

defective” with competence to testify, the Fifth District also disagreed with the

First District’s interpretation of the term “mentally defective” to “mean a total or

complete lack of mental capacity or understanding.” 

.

This conflict issue is premised on the Fifth District’s holding that the First

District’s comparison in Mathis between “mentally defective” and the concept of

“legal insanity” suggested an “unreasonably narrow reading of the term.” 

         The relevant criminal statute defining legal insanity in Florida provides as

follows:




                                           - 15 -
             (1) AFFIRMATIVE DEFENSE.—All persons are presumed to
      be sane. It is an affirmative defense to a criminal prosecution that, at
      the time of the commission of the acts constituting the offense, the
      defendant was insane. Insanity is established when:
             (a) The defendant had a mental infirmity, disease, or defect;
      and
             (b) Because of this condition, the defendant:
                    1. Did not know what he or she was doing or its
             consequences; or
                    2. Although the defendant knew what he or she
             was doing and its consequences, the defendant did not
             know that what he or she was doing was wrong.
             Mental infirmity, disease, or defect does not constitute a
      defense of insanity except as provided in this subsection.
§ 775.027, Fla. Stat. (2013). By contrast, the term “mentally defective” in the

sexual battery statute is defined as “a mental disease or defect which renders a

person temporarily or permanently incapable of appraising the nature of his or her

conduct.” § 794.011(1)(b), Fla. Stat.

      Other than both statutory definitions including the words “mental,”

“disease,” and “defect,” the definitions are noticeably different. For example, the

definition of “insanity” set forth in section 775.027 uses the verb “know” to

describe the requisite mental state, whereas the definition of “mentally defective”

uses the verb “appraise.” Those different verbs also modify different objects—

“what [the defendant] was doing or its consequences” for insanity, versus “the

nature of [the victim’s] conduct” for mentally defective.

      Moreover, not only are the two statutory definitions textually dissimilar, but

the statutes also differ greatly in application. “Insanity” is an affirmative defense


                                        - 16 -
asserted by a defendant to avoid criminal responsibility, with the burden on the

defendant to prove the defense by clear and convincing evidence. § 775.027(2),

Fla. Stat. On the other hand, the State must prove beyond a reasonable doubt, as

an element of the offense, that the victim was “mentally defective” to impose

criminal responsibility on a defendant for sexual battery on such a person.

§ 794.011, Fla. Stat.

      We agree with the Fifth District’s conclusion that the term “mentally

defective” cannot be equated with the definition of insanity, and that it “cannot

reasonably be read to mean a total lack of mental capacity, as the trial judge in

[this] case seems to have concluded based upon language in Mathis and [the Fifth

District’s prior panel decision in] Torresgrossa,” which cited Mathis for the

proposition that the definition of “mentally defective” is similar to the definition of

insanity. 3 

; 

. The word

“defective” is defined as “a person who is subnormal physically or mentally”;

“imperfect in form or function”; or “falling below the norm in structure or in

mental or physical function.” Merriam-Webster’s Collegiate Dictionary 302 (10th

ed. 1999). As stated by the Fifth District, the statutory definition of “mentally



       3. We note, once again, that the Fifth District inadvertently referenced the
incorrect term “mentally deficient” in its analysis. However, while the court
utilized the wrong term, we nevertheless embrace the Fifth District’s underlying
and well-reasoned conclusion on this issue.


                                        - 17 -
defective”—that is, “incapable of appraising the nature of his or her conduct”—

thus “connotes significantly diminished judgment, but not a complete and total

lack of mental awareness.” 

.

      Accordingly, we hold that the First District in Mathis erred to the extent it

suggested that, in order to conclude that a victim was “mentally defective” under

the sexual battery statute, the victim must display “a total or complete lack of

mental capacity or understanding.” 

contrary, we conclude that the Fifth

District in Dudley properly construed the sexual battery statute to determine that

the evidence in this case was “clearly sufficient to support a jury finding that the

victim was mentally defective, as defined by the statute.” 

                                   CONCLUSION

      For the reasons set forth above, we approve the Fifth District’s decision in

Dudley, consistent with the analysis we adopt in this opinion, and disapprove the

First District’s statutory interpretation in Mathis.

      It is so ordered.


PARIENTE, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
POLSTON, C.J., concurs in result.
LEWIS, J., concurs in result only, with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.




                                         - 18 -
LEWIS, J., concurring in result only.

      I concur in result only because while I do agree with the result of the district

court of appeal below, I cannot agree with the entirety of its reasoning. In a similar

fashion, I agree with the result of the majority, but not entirely with its reasoning or

analysis. In my view, the Legislature intended the applicable statutory provision to

establish broad protections for victims of abuse in this area. Yet, the words of

limitation from the district court below and the limitations in the discussion of the

protections afforded by the statute here do not provide a scope of protection to

victims as established by the statutory provision.

      Instead of providing clarity to this area of law by specifically articulating the

wide scope of protections afforded by the statute, the majority focuses its opinion

on reaching the rather obvious conclusion that the term “mentally defective,”

defined by section 794.011, Florida Statutes (2007), to mean that a “mental disease

or defect which renders a person temporarily or permanently incapable of

appraising the nature of his or her conduct,” does not equate to the legal definitions

of either insanity or competency. Furthermore, I cannot agree with the majority’s

reliance on what the majority describes as the “well-reasoned conclusion” of the

Fifth District that the term “mentally defective” means “significantly diminished

judgment, but not a complete and total lack of mental awareness.” See Majority




                                         - 19 -
Op. at 17 n.3, 18; State v. Dudley, 

, 752 (Fla. 5th DCA 2011). That

is far too limited.

       In fact, neither the majority nor the Fifth District has attempted to actually

discuss the parameters of the statutory definition of “mentally defective.” Both

courts have skirted the issue, utilizing the dictionary definitions of the words

“defective” or “deficient” to define a phrase that has already been defined by

section 794.011(1)(b) to mean “incapable of appraising the nature of his or her

conduct.” Quite simply, by failing to even attempt to provide a field of operation

for the statutory definition of “mentally defective” as it was articulated by the

Legislature, the majority has emasculated the legislative design that was clearly

intended to broadly protect certain persons from being taken advantage of and

sexually abused.

       Accordingly, because I cannot ascribe to the majority’s limited interpretation

of the statutorily defined term “mentally defective,” I concur in result only.

Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions

       Fifth District – Case No. 5D10-2863

       (Volusia County)

Clyde M. Taylor, III of Taylor & Taylor, PA, St. Augustine, Florida,

       for Petitioner




                                         - 20 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Heidt, Bureau
Chief, Criminal Appeals, and Pamela Jane Koller, Assistant Attorney General,
Daytona Beach, Florida,

      for Respondent




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