Smith v. State, 541 So. 2d 1275

Smith v. State

541 So. 2d 1275 | Fla. Dist. Ct. App. | 1989

Lead Opinion

THOMPSON, Judge.

Smith and Martin appeal their convictions and sentences for kidnapping, burglary of a conveyance with assault, sexual battery, principal to a sexual battery, and battery. We affirm the judgments and sentences as modified.

Smith and Martin contend that the evidence was legally insufficient to sustain a conviction of kidnapping and that the conviction of both burglary with an assault and the underlying battery violated their double jeopardy rights. There is ample evidence to sustain the convictions of kidnapping. They dragged the victim out of her car with extreme force to a nearby wooded area in order to lessen the chance of detection and facilitate the commission of the sexual battery. Faison v. State, 426 So.2d 963 (Fla.1983).

*1276Appellants further contend that to convict and sentence them for both burglary with an assault and the underlying offense of simple battery violated their double jeopardy rights. We agree and strike the conviction and sentence of each appellant on the charge of battery.

The judgments and sentences, as modified, are AFFIRMED.

WENTWORTH and WIGGINTON, JJ., concur.

Rehearing

ON REHEARING

THOMPSON, Judge.

Appellants’ Motion for Clarification is hereby treated as a motion for rehearing. We modify our previous opinion as the striking of the misdemeanor conviction results in a change in the recommended guidelines range. Accordingly, the cause is therefore remanded to the trial court for resentencing.

WENTWORTH and WIGGINTON, JJ., concur.