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Court bars change in teen rape charge

A mistake in the court document charging a teen with raping his 22-year-old mentally handicapped cousin can't be fixed once a 45-day deadline is passed, the state Supreme Court said Thursday.

James W. Rogers, an assistant attorney general, said the decision definitely was a defeat for the state, but he said he doesn't know whether it would turn out to be an ultimate defeat.

"At this point, it's not clear if the state will be able to re-prosecute," he said.

One dissenting justice didn't hold out much hope, though.

"The majority is allowing a delinquent juvenile to escape any punishment for a serious offense due to a technical violation, which did not in any way prejudice the juvenile," Justice Ben Overton wrote in his minority opinion.

The unsigned majority opinion cited a 1991 decision, in which Florida's high court had ruled that clerical errors can be corrected after the 45-day deadline for filing charges. That case involved a teen-ager charged in a drug case when the court document cited the wrong drug.

Under the circumstances in the later case, however, the state can't amend the document to correct the charge, five justices agreed.

Overton described the case: A 15-year-old was charged with raping his mentally handicapped cousin in September 1989.

The probable cause affidavit used by police charged the teen-ager with "sexual battery _ victim mentally defective and defendant is believed to be aware of same." That is a first-degree felony, punishable by as much as 30 years in prison.

The petition for delinquency _ the court document that officially charges juveniles _ was filed two weeks later, well within the 45-day deadline. But it referred to a sexual battery without the victim's consent. That's a second-degree felony, punishable by only 15 years in prison.

Two months later, the state filed an amended petition. The caption read "sexual battery with victim mentally defective" _ the first-degree felony. But the body of the amended charge said the victim was "physically helpless to resist," another first-degree felony.

With little explanation, the majority sent the case back to the trial court for further proceedings consistent with the 1991 case.

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