Edwards v. State, No. 91-2553

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation613 So.2d 508
Docket NumberNo. 91-2553
Decision Date15 January 1993
Parties18 Fla. L. Week. D292 Carl Michael EDWARDS, Appellant, v. STATE of Florida, Appellee.

Page 508

613 So.2d 508
18 Fla. L. Week. D292
Carl Michael EDWARDS, Appellant,
v.
STATE of Florida, Appellee.
No. 91-2553.
District Court of Appeal of Florida,
Fifth District.
Jan. 15, 1993.
Rehearing Denied Feb. 18, 1993.

Appeal from the Circuit Court for Sumter County; John W. Booth, Judge.

Richard L. Rosenbaum, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and David S. Morgan and Rebecca Roark Wall, Asst. Attys. Gen., Daytona Beach, for appellee.

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

Page 509

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.

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8 practice notes
  • Lewis v. State, No. 92-744
    • United States
    • Court of Appeal of Florida (US)
    • November 12, 1993
    ...800.04(2) 1 and section 794.011(2) relating to sexual battery upon a child under 12, are mutually exclusive. Accord Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993); Morton v. State, 548 So.2d 788 (Fla. 2d DCA 1989). The state, however, argues that the crime of lewd assault was a separat......
  • D.D.M. v. State, No. 95-156
    • United States
    • Court of Appeal of Florida (US)
    • November 3, 1995
    ...DCA 1993). Accord Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994); Walker v. State, 622 So.2d 630 (Fla. 3d DCA 1993); Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993). Likewise, the crime of attempted sexual battery would be mutually exclusive of lewd act upon a child unless establishe......
  • Hartline v. State, No. 97-2843.
    • United States
    • Court of Appeal of Florida (US)
    • September 10, 1999
    ...the state forfeited the application of enhancement statute since the enhancement only applies section 794.011. See Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993). Therefore, Hartline's conviction and sentence were improperly enhanced. We remand for resentencing and direct the trial cou......
  • State v. Stone, Nos. 95-2253
    • United States
    • Court of Appeal of Florida (US)
    • August 9, 1996
    ...1078 (Fla.1987); Roe v. State, 654 So.2d 1287 (Fla. 1st DCA 1995); Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994); Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993). It is the state's position, however, that the evidence supports numerous incidents of sexual The information here allege......
  • Request a trial to view additional results
8 cases
  • Lewis v. State, No. 92-744
    • United States
    • Court of Appeal of Florida (US)
    • November 12, 1993
    ...800.04(2) 1 and section 794.011(2) relating to sexual battery upon a child under 12, are mutually exclusive. Accord Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993); Morton v. State, 548 So.2d 788 (Fla. 2d DCA 1989). The state, however, argues that the crime of lewd assault was a separat......
  • D.D.M. v. State, No. 95-156
    • United States
    • Court of Appeal of Florida (US)
    • November 3, 1995
    ...DCA 1993). Accord Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994); Walker v. State, 622 So.2d 630 (Fla. 3d DCA 1993); Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993). Likewise, the crime of attempted sexual battery would be mutually exclusive of lewd act upon a child unless establishe......
  • Hartline v. State, No. 97-2843.
    • United States
    • Court of Appeal of Florida (US)
    • September 10, 1999
    ...the state forfeited the application of enhancement statute since the enhancement only applies section 794.011. See Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993). Therefore, Hartline's conviction and sentence were improperly enhanced. We remand for resentencing and direct the trial cou......
  • State v. Stone, Nos. 95-2253
    • United States
    • Court of Appeal of Florida (US)
    • August 9, 1996
    ...1078 (Fla.1987); Roe v. State, 654 So.2d 1287 (Fla. 1st DCA 1995); Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994); Edwards v. State, 613 So.2d 508 (Fla. 5th DCA 1993). It is the state's position, however, that the evidence supports numerous incidents of sexual The information here allege......
  • Request a trial to view additional results

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