Pires v. State, 4D01-2527.

• Decision Date: 10 March 2004
• Docket Number: No. 4D01-2527.,4D01-2527.
• Citation: 866 So.2d 1276
• Parties: Nilson Maia PIRES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

866 So.2d 1276

Nilson Maia PIRES, Appellant, v. STATE of Florida, Appellee.

No. 4D01-2527.

District Court of Appeal of Florida, Fourth District.

March 10, 2004.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant was convicted of two counts of lewd and lascivious conduct, one (Count I) for touching the breasts, or the clothing covering them, of a person over twelve but less than sixteen years of age, and the other (Count III) for inserting his tongue into the mouth of a person under sixteen years of age. The state concedes that the two convictions violate double jeopardy under the authority of Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001), because both acts occurred in one location without a temporal break between them so that the defendant had "time to pause, reflect, and form a new criminal intent between the occurrences." Id. at 1095 (citing Nicholson v. State, 757 So.2d 1227 (Fla. 4th DCA 2000); Saavedra v. State, 576 So.2d 953 (Fla. 1st DCA 1991)). We therefore reverse and remand for the trial court to vacate appellant's conviction and sentence for Count III.

WARNER, POLEN and KLEIN, JJ., concur.