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STATE v. CARROLL

No. 78-2279.

378 So.2d 4 (1979)

STATE of Florida, Appellant, v. Harry Earl CARROLL, Appellee.

District Court of Appeal of Florida, Fourth District.

As Amended On Rehearing January 9, 1980.

Attorney(s) appearing for the Case

Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, and John D. Cecilian, Asst. Attys. Gen., West Palm Beach, for appellant.

Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.

LETTS, Judge.

The State appeals a dismissal of an indictment charging the defendant with a sexual battery "upon ... a person eleven years of age or younger," the trial judge holding that the child, although not yet twelve, was at age eleven years nine months "over the age of eleven" and therefore not within Section 794.011(2), Florida Statutes (1977). We affirm.

Said subsection two provides that anyone who commits sexual battery upon "... a person 11 years...

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