State v. Stone, Nos. 95-2253

CourtCourt of Appeal of Florida (US)
Writing for the CourtCOBB
Citation677 So.2d 982
Parties21 Fla. L. Weekly D1806 STATE of Florida, Appellant/Cross-Appellee, v. Jimmy Don STONE, Appellee/Cross-Appellant.
Decision Date09 August 1996
Docket NumberNos. 95-2253,95-2515

Page 982

677 So.2d 982
21 Fla. L. Weekly D1806
STATE of Florida, Appellant/Cross-Appellee,
v.
Jimmy Don STONE, Appellee/Cross-Appellant.
Nos. 95-2253, 95-2515.
District Court of Appeal of Florida,
Fifth District.
Aug. 9, 1996.

Page 983

Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona, for Appellant/Cross-Appellee.

James B. Gibson, Public Defender, and Kenneth Witts, Assistant Public Defender, Daytona, for Appellee/Cross-Appellant.

COBB, Judge.

The state appeals from a final order granting the defendant's motion to strike scoresheet and vacating two of the defendant's convictions for lewd and lascivious assault upon a child. The defendant cross-appeals a sentencing issue.

By second amended information, the defendant was charged with two counts of capital sexual battery, section 794.011(2), Florida Statutes, and two counts of lewd and lascivious assault upon a child, section 800.04(1), Florida Statutes. There were two victims, S.W. and H.M., and each pair of sexual battery/lewd and lascivious charges concerned one of the victims. Each offense was alleged to have been committed between July, 1993 and August, 1993. Following the trial, the jury found the defendant guilty of two counts of the lesser included offense of attempted sexual battery and guilty as charged on the two lewd and lascivious charges.

At sentencing the defendant filed a motion to strike the scoresheet alleging several grounds including: (1) that the attempted sexual battery convictions must be scored as third degree felonies; and (2) that the lewd and lascivious convictions must be vacated because the attempted sexual battery convictions are the same incidents punished by the lewd and lascivious convictions. The trial court granted the motion as to ground 2 and the state appeals. The defendant has filed a cross-appeal concerning the denial of ground 1 of the motion.

The state argues that it was error for the trial court to vacate the lewd and lascivious assault convictions because the evidence showed that the attempted sexual battery convictions and lewd and lascivious assault charges arose out of separate acts. The state asserts that evidence was presented of numerous sexual assaults against the two victims.

The crimes of sexual battery and lewd and lascivious assault are mutually exclusive and a defendant cannot be convicted of both crimes if the charges arise out of the same act. State v. Hightower, 509 So.2d 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 abuse.

The...

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3 practice notes
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...and digital, see Ready v. State, 636 So.2d 67, 68 (Fla. 2d DCA 1994), or lingual contact with a child's vagina. See State v. Stone, 677 So.2d 982, 983 (Fla. 5th DCA 1996). As Judge Browning points out, the stipulated facts might more logically support a charge of attempt under one of these ......
  • Maynard v. Sec'y, Case No. 8:13-cv-1428-T-36EAJ
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 15, 2016
    ...a finding of sexual battery and attempted sexual battery. See Walker v. State, 622 So. 2d 630, 631 (Fla. 3d DCA 1993); State v. Stone, 677 So. 2d 982, 983-84 (Fla. 5th DCA 1996). A jury instruction on attempt was thus proper and the jury's findings are therefore sound, which precludes Defen......
  • Stone v. State
    • United States
    • United States State Supreme Court of Florida
    • November 25, 1996
    ...582 686 So.2d 582 Jimmy Don Stone v. State NO. 88,788 Supreme Court of Florida. Nov 25, 1996 Appeal From: 5th DCA, 677 So.2d 982 Disposition: Rev....
3 cases
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...and digital, see Ready v. State, 636 So.2d 67, 68 (Fla. 2d DCA 1994), or lingual contact with a child's vagina. See State v. Stone, 677 So.2d 982, 983 (Fla. 5th DCA 1996). As Judge Browning points out, the stipulated facts might more logically support a charge of attempt under one of these ......
  • Maynard v. Sec'y, Case No. 8:13-cv-1428-T-36EAJ
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 15, 2016
    ...a finding of sexual battery and attempted sexual battery. See Walker v. State, 622 So. 2d 630, 631 (Fla. 3d DCA 1993); State v. Stone, 677 So. 2d 982, 983-84 (Fla. 5th DCA 1996). A jury instruction on attempt was thus proper and the jury's findings are therefore sound, which precludes Defen......
  • Stone v. State
    • United States
    • United States State Supreme Court of Florida
    • November 25, 1996
    ...582 686 So.2d 582 Jimmy Don Stone v. State NO. 88,788 Supreme Court of Florida. Nov 25, 1996 Appeal From: 5th DCA, 677 So.2d 982 Disposition: Rev....

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