Smith v. State
578 So. 2d 407
Fla. Dist. Ct. App.1991Check TreatmentWe reverse the defendant’s convictions and sentence and remand for a new trial.
The state having opened the door by presenting testimony on the issue of whether the victim and a third party lived together, the trial court erred in not providing the defendant with the opportunity to refute that evidence. We find the error to be harmful.
Because of the new trial, on remand, we point out to the trial court that the defendant cannot be convicted of both sexual battery and lewd assault in this case; that the defendant must be present at any sentencing, should he be convicted again; and that he is entitled to notice and an opportunity to be heard prior to the imposition of public defender fees and court costs.