PETER JAMES ROBERTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Peter James Roberts was indicted for two counts of involuntary sexual battery against a child, but pleaded nolo contendere to a single lesser charge of attempted involuntary sexual battery. The court erroneously adjudicated him guilty on both counts. The appellate court reversed this portion of the judgment and remanded for proceedings consistent with Roberts's plea to a single charge.
The appellate court held that the trial court's adjudication of guilt on both counts was error because the record clearly shows the appellant intended to and did plead only to a single charge of attempted involuntary sexual battery. Accordingly, the conviction on both counts was reversed and the case remanded for further proceedings consistent with the plea.
[1] A defendant may reserve the right to appeal certain issues when entering a plea of nolo contendere.
[2] A court errs by adjudicating guilt on multiple counts when the defendant intended to plead to only a single charge.
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Join FLexlaw to unlock all legal intelligence“Because it is our determination from a careful inspection of the record that the appellant intended to and did plead only to a single charge of attempted sexual battery the adjudication of guilt by the court as to both counts was error”
The core holding explaining why the conviction on both counts was improper despite the plea to only one charge.
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Join FLexlaw to unlock all legal intelligenceRoberts was indicted on two counts of involuntary sexual battery against a female person eleven years of age or younger: count I for the act itself, a…
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WARREN, LAMAR, Associate Judge.
The appellant herein was indicted on two counts of involuntary sexual battery in violation of Section 794.011(2), Florida Statutes (1977), it being charged in count I that he did unlawfully commit a sexual battery upon a female person eleven years of age or younger, and in count II that he did injure the sexual organs of a female person eleven years of age or younger in an an attempt to commit sexual battery upon her. Following a plea of not guilty to both counts certain motions were filed and denied. Subsequently, the plea of not guilty was withdrawn, and the record indicates that appellant moved the court to accept a plea of nolo contendere to the lesser charge of attempted involuntary sexual battery, reserving his right to appeal; the court accepted the plea and found him guilty of the lesser charge, withholding formal adjudication of guilt pending pre-sentence investigation. At a later date however appellant was formally adjudged guilty of attempted involuntary sexual battery as included in both counts; defense counsel objected to such adjudication on both offenses.
The court sentenced appellant on each count separately, with the sentences to run concurrently, the court stating that it was not sure if the two counts were part of the same transaction but that it could be straightened out on appeal.
Because it is our determination from a careful inspection of the record that the appellant intended to and did plead only to a single charge of attempted sexual battery the adjudication of guilt by the court as to both counts was error, and the cause is remanded for further proceedings.
Other points presented on appeal have been examined and found without merit.
Reversed in part and remanded.
ANSTEAD, HARRY LEE, and MOORE, JOHN H. II, Associate Judges, concur.