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McILWAIN v. STATE

No. 79-310.

402 So.2d 1194 (1981)

Milton Lewis McILWAIN, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fifth District.

Rehearing Denied August 25, 1981.

Attorney(s) appearing for the Case

W. Ford Duane and Mitchell J. Frank, of Robertson, Williams, Duane, Lewis, Briggs & Ranson, P.A., Orlando, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Judge.

McIlwain appeals from a final judgment entered after a jury verdict adjudicating him guilty of a sexual battery on a seventeen year old boy, pursuant to section 794.011(4), Florida Statutes (1977). This section makes it a first degree felony to sexually batter a person over eleven years of age, when accomplished without that person's consent, and when the person is "physically helpless to resist." "Physically helpless" is defined as when a person "is...

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