Edwards v. State, 613 So. 2d 508

PER CURIAM.

Carl Michael Edwards’ conviction under count one for violation of section 794.011(4)(e), Florida Statutes, sexual battery upon a mentally defective person, a first-degree felony is affirmed. However, we vacate the conviction for count two which alleged a violation of section 800.04(2), Florida Statutes, sexual battery upon a child under sixteen years of age, a second-degree felony erroneously shown on the judgment as a first-degree felony. The supreme court has held that the crimes of lewd assault and sexual battery are mutually exclusive when they involve a single incident. State v. Hightower, 509 So.2d 1078, 1079 (Fla. 1987). The facts of this case indicate the occurrence of a single incident involving a sexual battery. Therefore, conviction of the offense charged under section 800.04(2) was improper.

Accordingly, we vacate the conviction for count two. Because count two is vacated and because the original sentence does not indicate whether the life sentence imposed was under count one or count two, or both, remand is necessary for the purpose of allowing the trial court to consider whether it wishes to confirm that the sentence originally imposed is appropriate for the remaining single count.

AFFIRMED in part; VACATED in part; REMANDED.

W. SHARP, PETERSON and GRIFFIN, JJ., concur.

Case Details

Case Name: Edwards v. State

Court Name: District Court of Appeal of Florida

Date Published: Jan 15, 1993

Citations: 613 So. 2d 508; 1993 WL 5299; 91-2553

Docket Number: 91-2553

Court Abbreviation: Fla. Dist. Ct. App.