The ruling that decides many Florida sex crime trials comes before a single juror is sworn: whether the jury will hear about other accusations. I saw that play out again and again in the Major Crimes Unit, defending homicide, sex crime, and child abuse cases, and over more than 150 jury trials to verdict. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, where our attorneys answer a Williams rule notice with depositions, an independent investigation of the prior accuser, and a targeted motion to exclude.

What is the Williams rule in Florida?

The Williams rule is Florida’s name for the law that controls when a jury may hear about crimes or bad acts other than the one charged. The general version, in section 90.404(2)(a), admits “similar fact evidence of other crimes, wrongs, or acts” only when it proves a material fact such as motive, opportunity, intent, plan, knowledge, identity, or absence of mistake. The same paragraph bars that evidence when it is relevant solely to prove bad character or propensity.

The rule takes its name from Williams v. State, 110 So. 2d 654 (Fla. 1959), a rape prosecution that began in a parking lot near Webb’s City in St. Petersburg. About six weeks before the charged attack, a 16-year-old found Ralph Williams hiding in the back of her car in the same lot at about the same hour. The Florida Supreme Court held that the earlier incident was admissible because it showed a plan, helped identify Williams, and answered his expected consent defense. The court also set the limit that still applies today: evidence whose only relevance is the accused’s character or propensity stays out.

The rule carries the most weight in sex crime prosecutions, where Florida law relaxes it, which is why our Tampa sex crimes lawyer team treats a Williams rule notice as one of the most important filings in the case.

How are sex crime cases different under Florida’s Williams rule?

Sex crime cases are different because Florida law relaxes the propensity ban when the charge is child molestation or a listed sexual offense. Two paragraphs of section 90.404 create that exception, and together they cover sexual battery, lewd or lascivious offenses involving children, and several related crimes.

• Paragraph (2)(b), child molestation. When the defendant is charged with child molestation, evidence of the defendant’s other acts of child molestation “is admissible and may be considered for its bearing on any matter to which it is relevant.” The statute defines child molestation by a list of offenses committed against a person 16 years of age or younger.
• Paragraph (2)(c), sexual offenses. When the defendant is charged with a listed sexual offense, such as sexual battery under section 794.011, evidence of the defendant’s other sexual offenses is admissible on the same terms. The Legislature added this paragraph in 2011, extending the child molestation approach to sexual offenses against victims of any age.

The Florida Supreme Court explained the reach of the child molestation paragraph in McLean v. State, 934 So. 2d 1248 (Fla. 2006), a Second District case in which the State offered testimony about earlier molestation to corroborate a child’s account. The court held that paragraph (2)(b) admits other acts regardless of whether they share any similarity or occurred within the family, and upheld the statute where identity was not disputed. The same opinion warned that section 90.403 keeps the statute from opening “the door to introduction of any and all propensity evidence in sexual molestation cases.” The court also left open whether the statute is constitutional when identity is disputed, an open question that matters whenever a case turns on who committed the act.

The exposure is wide. In October 2024, 1,999 registered sex offenders lived in Hillsborough County communities, with 1,579 in Pinellas and 872 in Pasco, according to the Florida Legislature’s OPPAGA Report 24-11 (December 2024). For anyone in that group who faces a new sex charge, the prior conviction is a likely candidate for a Williams rule notice.

What must the State prove before a jury hears about another accusation?

The State must clear five safeguards before a jury hears about a collateral act in a sex crime case. The first comes from the statute’s notice provision, and the rest come from McLean and section 90.403.

1. Written notice. Under section 90.404(2)(d), the State must serve the defense, no fewer than 10 days before trial, a written statement of the other acts it intends to offer, described with the particularity required of an indictment or information. No notice is required for evidence used only to impeach or in rebuttal.
2. Clear and convincing proof. Before considering admission, the judge must find that the other act was proved by clear and convincing evidence. A rumor, a hunch, or an unsworn complaint should not meet that standard.
3. A prejudice balancing test. Under section 90.403, relevant evidence is inadmissible when the danger of unfair prejudice, confusion, misleading the jury, or needless cumulative evidence substantially outweighs its probative value. McLean told judges to weigh similarity, closeness in time, frequency, and intervening circumstances, plus any factor unique to the case.
4. No feature of the trial. The judge must keep the collateral act from becoming a feature of the trial. When necessary, the court should exclude the evidence or substantially limit how much of it the jury hears.
5. A limiting instruction. When the evidence comes in, the court must, if asked, tell jurors the limited purpose for which they may consider it. At the close of the evidence, the jury must again be told that limited purpose and that the defendant cannot be convicted of a charge not in the information.

Can an accusation that never led to charges be used against you?

Yes. A prior accusation does not need an arrest, a charge, or a conviction to qualify as Williams rule evidence, as long as the State can prove the act by clear and convincing evidence and the evidence survives the balancing test. Florida law draws one firm line, however, and it depends on how the earlier accusation ended.

In State v. Perkins, 349 So. 2d 161 (Fla. 1977), the Florida Supreme Court held that evidence of a crime for which the defendant was acquitted is not admissible in a later trial, calling it fundamentally unfair to make a defendant defend the same accusation twice. By contrast, in Holland v. State, 466 So. 2d 207 (Fla. 1985), the court refused to extend that protection to a robbery charge the State had dropped, because a nolle prosequi (a prosecutor’s decision to abandon a charge) may have nothing to do with the strength of the evidence.

What happens when propensity evidence takes over a trial?

When evidence that proves only character takes over a trial, an appellate court can reverse the conviction even without a defense objection. Two lessons follow: jurors struggle to set that evidence aside, and judges know it.

Research supports that concern. In a mock-jury study of 160 adults published in Law and Human Behavior in 1985, R. L. Wissler and M. J. Saks found that conviction rates were highest when the defendant’s prior conviction was for a crime similar to the one charged, and that jurors did not limit their use of the record as the judge’s instruction directed (NCJRS abstract). For that reason, a limiting instruction should be the last safeguard, after the judge has already screened the evidence.

Green v. State, No. 2D2024-1803 (Fla. 2d DCA Sept. 4, 2026), a Pinellas County sexual battery case, shows the danger. The State introduced a steak knife found in a recessed area of Gregory Green’s van and two sealed, unused condoms, although no evidence connected either item to the crimes. Prosecutors returned to the items through a crime scene technician and a detective, and then told jurors in closing that the knife and condoms were “odd things” they should consider. The Second District held that the items’ only possible relevance was bad character or propensity. Because defense counsel never objected, the court applied fundamental error review, and it found the error, combined with improper prosecutorial comments, required reversal of the sexual battery and battery convictions and a new trial.

Can the defense use someone else’s prior acts? Torbit v. State (2026)

Yes, but only under the general Williams rule, and only with close similarity. A July 2026 First District decision shows how narrow that path is in sex crime cases.

What happened in Torbit

Torbit v. State, No. 1D2024-1393 (Fla. 1st DCA July 29, 2026), arose from a Leon County trial for sexual battery on a victim who was physically helpless to resist. The complainant, T.B., ranged from highly intoxicated to barely conscious during a night of sexual activity in 2018 involving Logan Torbit, another man named Pasinski, and a 17-year-old girl. Pasinski, T.B., and the 17-year-old all testified for the State. Torbit’s defense was that Pasinski, not Torbit, assaulted T.B.

To support that theory, Torbit sought to introduce evidence that Pasinski allegedly sexually battered a different woman, B.B., in May 2019, more than ten months later. Officers found B.B. in a towel because Pasinski had told her to shower. Torbit argued the shower instruction matched how Pasinski and the 17-year-old had bathed T.B. on the night in question, suggesting Pasinski had learned to remove DNA. He offered it as “reverse Williams rule” evidence under paragraph (2)(c), relied on bodycam footage, and specifically disclaimed paragraph (2)(a). The trial court excluded the evidence, and the jury convicted. Torbit faced up to 30 years but received a downward departure of three years in prison followed by three years of sex offender probation.

What the First District held

The First District affirmed on two grounds:

• Paragraph (2)(c) covers only the defendant. By its terms, the paragraph admits evidence of “the defendant’s commission” of other sexual offenses, so it does not reach a collateral offense committed by someone else.
• No proffer, no review. Even if the paragraph applied, Torbit never proffered B.B.’s testimony, so the appellate court had no record to judge what she would have said or how the trial court applied the McLean factors.

Judge Treadwell concurred to make the point sharper. He wrote that paragraph (2)(c) “creates an opportunity only for the prosecution,” so there is no reverse rule to be found in its text. He also explained that Torbit never raised a due process or Confrontation Clause argument in the trial court, which left any constitutional claim unpreserved. The concurrence did not endorse a reverse rule under (2)(c), and it did not decide the constitutional question.

What the defense can still do

The defense still has the traditional reverse Williams rule under paragraph (2)(a). In State v. Savino, 567 So. 2d 892 (Fla. 1990), a defendant charged with killing his six-year-old stepson tried to show that his wife had killed her infant daughter years earlier. The Florida Supreme Court held that defense-offered similar fact evidence is judged by the same standard as the State’s, which for identity means “a close similarity of facts, a unique or ‘fingerprint’ type of information,” and it upheld the exclusion. Six weeks after Torbit, Wellons v. State, No. 4D2025-2340 (Fla. 4th DCA Sept. 9, 2026), added a useful counterweight: the Fourth District agreed that a prior shooting at the defendant’s home was too dissimilar to qualify as reverse Williams rule evidence, yet reversed a murder conviction because the same evidence was admissible for another purpose, to explain why the defendant ran.

Three lessons from these cases shape how our firm tries sex cases:

1. Choose the right paragraph. Offer third-party collateral acts under (2)(a) and build the fingerprint-level similarity Savino requires.
2. Proffer the witness. Put the collateral witness’s actual testimony on the record outside the jury’s presence, because an appellate court will not guess.
3. Raise every ground at trial. State the due process, confrontation, and right-to-present-a-defense arguments to the trial judge, and offer any alternative purpose for the evidence, as the defense did in Wellons. Our post on why your lawyer must object at trial explains why preservation decides so many appeals.

How do our attorneys fight Williams rule evidence?

Our attorneys fight Williams rule evidence by attacking the prior accusation on facts first and on law second. A collateral accuser who looks strong in a police report often looks very different after a deposition and an independent investigation.

1. Investigate the prior accuser. We depose the collateral witness, gather records and social media, interview third parties, and look for motive, delay in reporting, and contradictions.
2. Challenge the notice. We hold the State to the 10-day deadline and the particularity requirement, and we object when the notice is vague about dates, places, or acts.
3. Force the clear and convincing finding. We ask the court to hear live testimony at a pretrial hearing and to rule on the proof standard before any balancing.
4. Argue dissimilarity and remoteness. We line up the differences in age, relationship, location, manner, and timing that McLean tells judges to weigh.
5. Limit what the jury hears. If some evidence comes in, we ask the court to restrict the number of witnesses and exhibits and to keep the prosecutor from making the other act the centerpiece of closing argument.
6. Protect the record. We request limiting instructions at the moment of admission and in the final charge, and we object to every improper use so the issue survives for appeal.

Losing the pretrial hearing does not end the issue. The defense can still limit how the evidence is used at trial, object when it starts to dominate the case, and raise the ruling on appeal.

Related rules often work alongside this one. Florida’s rape shield law limits evidence of the complainant’s sexual history, the child hearsay exception controls a child’s out-of-court statements, and a motion to sever can keep unrelated counts from being tried together. When the defense is that the encounter was consensual, our guide to the consent defense explains how prior-act evidence can shape that strategy.

When should you talk to a lawyer about a prior accusation?

You should talk to a lawyer as soon as you learn that detectives are investigating a sex crime allegation, before any charge is filed if possible. The 10-day notice rule sets only the State’s minimum, and a proper investigation of a collateral accuser takes far longer.

The window before charges is often the most valuable. The State Attorney’s Office reviews every case before deciding to prosecute, and during that window our attorneys can present evidence and context directly to the assigned prosecutor. Our page on representation before charges are filed explains how that process works.

For more about our defense strategies, visit our Sex Crimes page.

Frequently asked questions

Can the State use a sex charge I was acquitted of in Florida?

No. Under State v. Perkins, evidence of a crime for which a jury acquitted you is not admissible against you in a later trial, although a charge the State simply dropped can still be offered if it meets the other requirements. The Brancato Law Firm checks the disposition of every prior case listed in a Williams rule notice and moves to exclude any acquitted conduct before trial.

How old can a prior accusation be and still come in under the Williams rule?

Florida sets no fixed cutoff, but closeness in time is one of the factors a judge must weigh under McLean, and the presence or absence of intervening circumstances matters too. Our attorneys at The Brancato Law Firm build a timeline of the prior accusation and the charged act to show the court how remote and different the two events are. Our Tampa sex crime defense attorneys use that timeline at the pretrial hearing.

Does the prosecutor have to tell my lawyer before using prior accusations at trial?

Yes. Section 90.404(2)(d) requires written notice no fewer than 10 days before trial, describing the other acts with the particularity of a charging document, though no notice is needed for impeachment or rebuttal evidence. The Brancato Law Firm reviews every notice for timing and detail and objects when it falls short.

What should I do if detectives are contacting people from my past during a sex crime investigation?

Decline to give a statement and get a lawyer involved right away, because investigators often look for other accusers before a charging decision. The Brancato Law Firm can step in at that stage through pre-file advocacy, gathering our own evidence and presenting it to the prosecutor before charges are filed.

Is the Williams rule the same as Florida’s rape shield law?

No. The Williams rule governs evidence about the accused’s other acts, while the rape shield law in section 794.022 limits evidence about the complainant’s prior sexual conduct. The Brancato Law Firm litigates both rules when a case calls for it, and our post on Florida’s rape shield law covers its exceptions.

Can a Williams rule error get a sex crime conviction reversed on appeal?

Yes. Florida appellate courts reverse when collateral or propensity evidence was wrongly admitted and the error was not harmless, as the Second District did in Green v. State in 2026. At trial, The Brancato Law Firm makes a clear record with objections, proffers, and requests for limiting instructions so that any error can be reviewed on appeal.

Talk to a Tampa sex crimes defense team now

Before you talk to detectives, or to anyone from your past, about an accusation, call The Brancato Law Firm, P.A. at (813) 727-7159. Founded by Tampa Criminal Defense Attorney Rocky Brancato, our firm starts investigating collateral accusers as soon as we are retained, because the State’s Williams rule notice can arrive as late as 10 days before trial and the work to answer it takes far longer. Call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida jury can convict on a lewd and lascivious charge with no physical evidence at all, because section 794.022(1), Florida Statutes says the child’s testimony “need not be corroborated.” I learned how these cases are built, and where they break, in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, which handled homicide, sex crimes, and child abuse cases. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have tried more than 150 jury trials to verdict. Our attorneys defend lewd and lascivious charges across Hillsborough, Pinellas, and Pasco Counties, from the first call from a detective through trial and, when needed, after conviction.

What are the four lewd and lascivious offenses in Florida?

Section 800.04, Florida Statutes creates four separate crimes, and each one requires that the alleged victim was under 16. The statute has not been amended since 2022.

Choosing the right category matters because the penalties differ sharply. A touch the State calls molestation may legally be conduct, and a case charged as battery may lack proof of “sexual activity” as the statute defines it. Our Tampa sex crimes lawyer team at The Brancato Law Firm checks the charging document against the evidence before anything else.

What are the penalties for a lewd and lascivious charge in Florida?

The penalty turns on the ages of the accused and the child, and on any prior record. Maximum terms come from section 775.082, Florida Statutes.

The most serious tier carries a mandatory minimum. For lewd molestation of a child under 12 by an adult, committed on or after September 1, 2005, section 775.082(3)(a)4.a. requires either life or “a split sentence that is a term of at least 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life.” In Rochester v. State, 140 So. 3d 973 (Fla. 2014), the Florida Supreme Court held that “the trial court does not have the discretion to impose a sentence below the twenty-five year minimum.” A second such conviction for an offense on or after July 1, 2008 requires life.

The child’s age is often the whole case. In Lincoln v. State, No. 6D2023-0235 (Fla. 6th DCA Dec. 30, 2024), a Highlands County defendant received a life sentence, but the jury had been instructed on and found only the 12-to-15 offense, and the evidence showed the child had turned 12. The court held that “[t]he sole distinction” between the life felony and the second-degree felony “is the age of the victim,” and ordered resentencing on the lower offense. Our attorneys at The Brancato Law Firm pin down the child’s age on every date the State alleges.

Are consent or a mistaken belief about age defenses?

No. Section 800.04(2) states that “[n]either the victim’s lack of chastity nor the victim’s consent is a defense to the crimes proscribed by this section.” Section 800.04(3) adds that “[t]he perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of his or her age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as a defense.”

That rule surprises many people charged after a relationship with a 14- or 15-year-old who claimed to be older. A fake ID or a dating-app profile does not change the charge. The statute does carve out one act: “A mother’s breastfeeding of her baby does not under any circumstance constitute a violation of this section.”

What changed in Florida’s lewd and lascivious laws in 2026?

Florida repealed its misdemeanor “unnatural and lascivious act” law, section 800.02, effective October 1, 2026, and created a new felony for indecent exposure while observing a child. Both changes came from chapter 2026-159, Laws of Florida, approved June 16, 2026. Some websites still describe section 800.02 as current law; it no longer applies to conduct on or after October 1, 2026.

The new section 800.035, Florida Statutes, “Indecent exposure of sexual organs while observing a child,” is a third-degree felony. It covers a person who, while observing a child under 16 for sexual gratification, intentionally exposes his or her sexual organs in a lewd or lascivious manner or performs a non-contact sexual act. “Observing” means intentionally viewing a person who can reasonably see the offender, and it is not a defense that the child was unaware or did not see. Breastfeeding mothers and nudity in a place set apart for it are excluded.

Exhibition over the internet is a different crime. Section 800.04(7) does not mention electronic devices. Live exhibition “over a computer online service, Internet service, or local bulletin board service” to a child under 16 is charged under section 847.0135(5), Florida Statutes, a second-degree felony for an adult and a third-degree felony for a person under 18.

How does the State use other accusations against the accused?

In a child molestation case, the State can ask to introduce evidence that the accused molested other children. Section 90.404(2)(b), Florida Statutes provides that this evidence “is admissible and may be considered for its bearing on any matter to which it is relevant.” The State must give notice no fewer than 10 days before trial.

The limits come from McLean v. State, 934 So. 2d 1248 (Fla. 2006), a case that began in the Second District. The Florida Supreme Court upheld the statute but required the trial judge to “find that the prior acts were proved by clear and convincing evidence” and then weigh “(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances.” The evidence must not “become a feature of trial,” and the jury receives a cautionary instruction on request.

Those findings are where the fight happens. In State v. Riggleman, 397 So. 3d 1152 (Fla. 2d DCA 2024), a Sarasota County case, the Second District quashed an order excluding collateral-act evidence because the trial court had not made the required relevance and McLean findings. Our attorneys at The Brancato Law Firm build the record on each McLean factor so an exclusion holds up. Our post on the Williams rule in sex crimes cases explains these motions in more depth.

How are a child’s interviews and statements used at trial?

Most lewd and lascivious cases rest on the child’s recorded forensic interview, the child’s trial testimony, and adults who repeat what the child told them. Each piece can be tested. Our post on child hearsay in Tampa sex cases explains when a child’s out-of-court statements may be admitted.

The State must still prove each count, including where, when, and how old the child was. In Crenshaw v. State, No. 5D2023-3159 (Fla. 5th DCA Sept. 19, 2025), a Putnam County case, the court ordered a judgment of acquittal on one molestation count because the child never testified to that touching in Putnam County and the child hearsay witnesses “acknowledged that the victim provided no timeline or dates.” Another count was affirmed only because the defense had not preserved its objection. Our attorneys move for acquittal count by count, on every element.

Confessions get special treatment in these cases. Section 92.565, Florida Statutes lets the State use a confession without independent proof of each element when, among other factors, the child was under 12. The judge must first hold a hearing, find the confession “trustworthy” with corroboration shown by a preponderance of the evidence, and “make specific findings of fact, on the record.”

Is there a statute of limitations for lewd and lascivious charges?

For lewd battery and lewd molestation of a child under 16, there is usually no time limit. Section 775.15(18), Florida Statutes allows prosecution “at any time, unless, at the time of the offense, the offender is less than 18 years of age and is no more than 4 years older than the victim.”

Lewd conduct and lewd exhibition are not covered by subsection (18). For those charges, subsection (13)(a) delays the clock until the child turns 18 or the offense is reported to law enforcement or another government agency, whichever comes first, and the ordinary felony periods then apply. Subsection (16) extends the time when the accused is identified through DNA, as long as preserved evidence is available for the defense to test.

What happens after a lewd and lascivious conviction in Florida?

A conviction under section 800.04 requires registration as a sexual offender, and the most serious versions make the person a sexual predator on a single conviction. Under section 943.0435, Florida Statutes, a registrant must report in person to the sheriff within 48 hours after establishing a residence, release, or conviction. The 25-year removal petition is not available for adult convictions under section 800.04(5)(b) and for certain lewd battery and molestation convictions. Under section 775.21, Florida Statutes, a “capital, life, or first degree felony violation” of section 800.04 triggers the sexual predator designation.

The registry is large. As of October 2024, Florida’s sex offender registry listed 86,207 people, including 16,246 sexual predators, according to the Florida Legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) in Report 24-11. The same report counted 1,999 registrants living in Hillsborough County communities in October 2024, up from 1,969 in 2021.

Research on re-offense cuts both ways. The Bureau of Justice Statistics study Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14) (2019) found that 7.7% of released sex offenders were arrested for rape or sexual assault within nine years, compared with 2.3% of other released prisoners, while about 67% were arrested for any crime, compared with 84% of other released prisoners. Our posts on sex offender registration in Florida and getting off the Florida sex offender registry explain the duties and the limited ways out.

How do our attorneys fight a lewd and lascivious charge?

Our attorneys fight these charges by testing the account, the dates, and the ages the State must prove, and by excluding evidence the law does not allow. The approaches that most often matter:

1. The origin of the accusation. We examine when and how the allegation first came out, including divorce and custody disputes, family conflict, and who spoke to the child before the forensic interview.
2. Interview quality. We review the recorded interview for leading questions and for details that came from adults.
3. Physical and digital facts. Home layouts, schedules, school records, and social media can show an act could not have happened as described.
4. Ages and dates. We hold the State to proof of the child’s age and the date range on every count, as Lincoln and Crenshaw show.
5. Collateral evidence. We oppose other-act evidence under McLean and demand a section 92.565 hearing on any confession.
6. Sentencing exposure. When the facts support it, we push to move a case out of the life-felony tier, which is the only one with the 25-year minimum.

For sexual battery charges, which carry their own penalties and defenses, see our guide on how to fight a sexual battery charge in Florida.

Real results in lewd and lascivious cases

Past results do not guarantee future outcomes. More results are on our case results page.

What should you do if you are accused or under investigation?

Do not talk to the detective, the child, or the family about the allegation, and call a defense lawyer first. Detectives often try to interview the accused before an arrest, and a statement explaining “what really happened” often becomes the State’s best evidence. Save texts, calendars, and records that show where you were on the dates in question.

Early counsel can change the outcome. Our pre-file advocacy can include presenting evidence to the State Attorney’s Office for the 13th Judicial Circuit before it files the charging information. If an arrest has already happened in Hillsborough County, first appearance takes place within 24 hours at the Orient Road Jail, where bond and no-contact conditions are set. Our Hillsborough County criminal defense attorney page explains what comes next.

Frequently Asked Questions About Lewd and Lascivious Charges in Florida

Can lewd and lascivious charges be dropped in Florida?

Yes, when the evidence shows the account is unreliable, the dates or ages cannot be proven, or DNA excludes the accused. The Brancato Law Firm has had lewd and lascivious accusations dismissed after an accuser’s social media contradicted the story and after DNA excluded our client.

Is lewd molestation always a life felony in Florida?

No, it is a life felony only when the accused is 18 or older and the child is under 12. The Brancato Law Firm checks the child’s age on each alleged date, because in Lincoln v. State a life sentence was reversed when the jury had found only the 12-to-15 offense.

Can a judge go below 25 years for lewd molestation of a child under 12?

No, under Rochester v. State (Fla. 2014) the judge has no discretion to go below the 25-year minimum for an adult convicted under section 800.04(5)(b). Our attorneys at The Brancato Law Firm focus on whether the charge belongs in that tier at all, as explained on our sex crimes defense page.

Is touching over clothing lewd and lascivious in Florida?

It can be, because the molestation statute covers touching of “the clothing covering” the listed body parts in a lewd or lascivious manner. The Brancato Law Firm challenges the intent element, which the State must prove from the circumstances, and whether an accidental or innocent touch is being recast.

What happened to Florida’s unnatural and lascivious act law?

Section 800.02 was repealed effective October 1, 2026 by chapter 2026-159, which also created the new felony in section 800.035. Our attorneys at The Brancato Law Firm check the date of the alleged conduct against that effective date; you can read the new law in section 800.035.

Should I talk to police if I am accused of lewd and lascivious conduct?

No, not without a lawyer present. The Brancato Law Firm can speak with the detective for you and pursue representation before charges are filed.

Protect your future before the State builds its case

A lewd and lascivious investigation often moves quietly for weeks before an arrest, and that time is the best chance to shape the outcome. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will handle contact with detectives, preserve the records that matter, and start testing the accusation right away. Call (813) 727-7159 for a free, confidential consultation. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

For more about our defense strategies, visit our Tampa Sex Crimes Lawyer page.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have tried cases in Tampa Bay courtrooms for more than 25 years, and the hardest conversations I have are with families whose loved one was convicted at a trial where the defense lawyer sat silent through a closing argument that should have drawn five objections. Green is a reminder that silence is not always fatal — and a warning about how much has to go wrong before an appellate court will step in without it.

What Counts as Prosecutorial Misconduct in a Florida Trial?

Argument or evidence that asks the jury to convict for a reason other than proof of the charged crime beyond a reasonable doubt. A prosecutor is an advocate, and closing argument is supposed to be forceful; the line is crossed when the argument does one of the things Florida courts have long held improper:

A single stray remark rarely reverses a conviction. What reverses convictions is a pattern — and, when no one objected, a pattern severe enough to meet the fundamental-error standard.

Why Does It Matter Whether Your Lawyer Objected?

Because Florida’s contemporaneous objection rule ordinarily means that an error no one raised at trial cannot be raised on appeal. The theory is that the trial judge should have the chance to fix the problem — strike the comment, instruct the jury, or grant a mistrial — while it is happening. An appellate court will not reverse a conviction for a mistake the defense never asked the judge to correct.

The one exception is fundamental error. Green states the standard in the terms Florida courts have used for decades: fundamental error is “the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the alleged error.” As the court put it, “the sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error.” That is a deliberately high bar. It is not enough that the prosecutor said something improper; the improper conduct has to be so pervasive or so damaging that the trial itself cannot be trusted.

What Happened in Green v. State?

A credibility contest was decided with evidence that had no bearing on credibility. In Green v. State, No. 2D2024-1803 (Fla. 2d DCA Sept. 4, 2026), Gregory Green was tried in Pinellas County on sexual battery and incest charges arising from an encounter with his biological niece in his van. (Read the opinion.) The State’s theory was force; the defense’s theory was that the sexual contact was consensual — a theory that conceded the incest count, to which the defense stipulated, and put the sexual battery counts squarely on the question of consent.

Into that trial the State introduced two things recovered from the van: a steak knife found in a recessed compartment, and two sealed, unused condoms. The niece never testified that Green used a weapon, threatened her with one, or that she ever saw one. She said nothing about condoms. Defense counsel did not object to either exhibit. In closing, the prosecutor made the items a theme — “Had two condoms in it. It’s a strange thing to find, I would submit to you folks. Two condoms in the back of his van, a knife in plain view[,] which is — it’s odd things” — and told the jury: “When he took [the victim] in that van, I submit to you he knew exactly what he was doing. It was thought out. He preyed on her.” The State argued the jury should consider the knife as evidence of guilt and relied on the knife and condoms to show Green’s “state of mind and intent.”

The Second District reversed the sexual battery and battery convictions and remanded for a new trial. It held that admitting the knife and the condoms was error because “the only possible relevance of the [items] would be to demonstrate [Green’s] bad character or propensity” — no link to the charged crimes was ever established, and intent is not an element of sexual battery. It further held that the prosecutor “made improper statements that amounted to personal opinions of guilt” and “improper statements implicating Green’s right to not testify and shifting the burden of proof.” And it concluded that “the improper statements taken together with the State’s use and emphasis on irrelevant evidence … lead to the conclusion that their cumulative effect constitutes fundamental error requiring reversal.” The incest conviction, which the defense had conceded, was affirmed. Judges Silberman, Morris, and Black sat on the panel.

Why Were the Knife and the Condoms Inadmissible?

Because Florida’s evidence code forbids exactly the inference the State wanted the jury to draw. Section 90.404(1), Florida Statutes, provides that “evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion.” Subsection (2)(a) allows evidence of other acts when it is “relevant to prove a material fact in issue” such as motive, intent, plan, or identity, “but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” And even relevant evidence goes out under section 90.403 when “its probative value is substantially outweighed by the danger of unfair prejudice.”

Run the knife and the condoms through that framework and they fail at the first step. A knife in a compartment that the alleged victim never saw does not prove force; it proves that the defendant owned a knife. Sealed condoms do not prove a sexual battery; they prove, at most, that the defendant anticipated consensual sex — which was the defense. The State’s only real use for them was the one the prosecutor made explicit: they were “odd things,” they showed “he knew exactly what he was doing,” and therefore he was the kind of man who would do this. That is a propensity argument, and the code prohibits it. The court’s related point about intent is technical but important: sexual battery is defined by the act and the absence of consent, so “state of mind and intent” was not a material fact the knife could have been offered to prove.

The same body of law governs the State’s use of prior bad acts in sex-crime prosecutions more broadly — our article on the Williams rule in Florida sex crimes cases covers the procedural requirements the State must meet before that evidence comes in.

How Does Cumulative Error Work?

By adding up errors that might each be survivable alone. Green did not rest on the knife alone, or the condoms alone, or any single sentence of the closing. It rested on all of it together: irrelevant physical evidence admitted without objection, a closing argument that made that evidence its centerpiece, personal opinions of guilt, and comments touching the right to remain silent and the burden of proof — in a trial that came down to whether the jury believed the complainant or the defendant’s account of consent. In a case like that, the court reasoned, the cumulative effect of the errors was such that a guilty verdict could not be trusted to have been obtained without them.

For appellate counsel, cumulative error is the argument that turns a list of individually “harmless” mistakes into a reversal. For trial counsel, it is a reason to put every one of those mistakes on the record as it happens, because a preserved error is reviewed under a far more forgiving standard than an unpreserved one.

What Does This Mean If You or a Family Member Has Already Been Convicted?

That the transcript is worth reading closely, and quickly. Three things follow from Green:

1. A failure to object is not the end of the appeal. If the trial record shows improper evidence and a pattern of improper argument, fundamental error is a live claim on direct appeal even though trial counsel stayed silent.
2. The clock is short. A notice of appeal in a Florida criminal case must be filed within thirty days of the sentence. If that window is missed, the fundamental-error argument may have to be repackaged as an ineffective-assistance claim in a postconviction motion, which is a different and harder path.
3. The trial lawyer’s silence is itself evidence. Where the record shows errors that should have drawn objections, the failure to object can support a claim that counsel was ineffective — a separate route to a new trial if the direct-appeal route is unavailable.

Our attorneys review trial transcripts for exactly these patterns, and Green gives that review a fresh Second District precedent to anchor it. For a related look at how appellate courts treat trial-level errors, see our discussion of jury instruction error on appeal.

How Do Our Attorneys Guard Against This at Trial?

By treating every physical exhibit and every sentence of closing as something that has to be earned. Concretely:

• Motions in limine on physical evidence. Before the jury is seated, we force the State to articulate the link between each exhibit and an element of the charged crime. A knife no witness will mention and condoms no witness will discuss do not survive that hearing.
• Objection, every time. A single objection to a pattern of improper argument is not enough; each improper comment is objected to, the objection is ruled on, and where warranted a mistrial is requested. That preserves the issue under the ordinary harmless-error standard rather than leaving the client to hope for a fundamental-error finding later.
• Curative instructions on the record. When the judge sustains an objection, we ask for the instruction — and note for the record when it cannot cure the harm.
• Protecting the silence. Any argument that edges toward what the defendant “did not explain” or what the defense “did not show” draws an immediate objection on both constitutional and burden grounds.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

What Should You Do If You Suspect Misconduct in Your Trial?

Get the transcript ordered and reviewed by counsel who did not try the case, before the appeal deadline runs. Write down every moment of the trial that felt wrong — an exhibit that seemed to come from nowhere, a comment about you not taking the stand, a closing that talked about what kind of person you are rather than what happened. Those impressions often point straight to the pages an appellate lawyer needs to read first.

Frequently Asked Questions About Prosecutorial Misconduct in Florida

Is prosecutorial misconduct the same as fundamental error?

No. Misconduct is the improper conduct; fundamental error is the standard an appellate court applies when deciding whether unobjected-to misconduct requires reversal. Most misconduct that is objected to at trial is reviewed for harmless error, a lower bar. Unobjected-to misconduct must reach the fundamental-error level — an error without which “a verdict of guilty could not have been obtained.”

What is “vouching,” and why is it improper?

Vouching is a prosecutor personally endorsing a witness’s truthfulness or the defendant’s guilt — “I believe her,” “I submit to you he knew exactly what he was doing.” It is improper because it asks the jury to rely on the prosecutor’s judgment instead of the evidence, and because the prosecutor’s office carries an authority a witness does not.

Can the prosecutor comment on the defendant not testifying?

No. Any comment that is fairly susceptible of being interpreted as a reference to the defendant’s silence is improper, and arguments about what the defense failed to explain or disprove risk crossing the same line by shifting the burden of proof. Green identified both kinds of comment among the errors that required reversal.

Does a reversal mean the charges are dismissed?

Usually not. Green was remanded for a new trial on the sexual battery and battery counts, which the State may retry without the improper evidence and argument. A reversal for insufficient evidence would bar retrial, but a reversal for trial error does not.

Why was the incest conviction affirmed?

Because the defense conceded it. The theory of the case was consent, and a consensual sexual relationship with a biological niece is still incest under Florida law. The court reversed only the counts on which the improper evidence and argument could have affected the verdict.

My lawyer didn’t object to anything. Do I still have an appeal?

Potentially yes, on a fundamental-error theory — and Green is a September 2026 example of exactly that. Whether the errors in your trial reach that level depends on the record, which is why the transcript has to be reviewed by appellate counsel promptly.

If you or a family member was convicted after a trial in Hillsborough, Pinellas, or Pasco County and something about the evidence or the prosecutor’s closing argument did not sit right, the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — can review the transcript and tell you whether Green applies. Call (813) 727-7159 before the thirty-day appeal window closes.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.