ANDRES ORTIZ HERNANDEZ A/K/A ANDRES HERNANDEZ ORTIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
ANDRES ORTIZ HERNANDEZ A/K/A ANDRES HERNANDEZ ORTIZ, APPELLANT,
STATE OF FLORIDA, APPELLEE
586 So. 2d 1344
Florida District Court of Appeal, Second District (1991)
Positive Treatment
Cited by 2 cases
Opinion of the Court
PER CURIAM.
A jury found the appellant guilty of five counts of capital sexual battery and one count of kidnapping. On appeal he raises numerous trial and sentencing errors. We find merit in only one of his contentions. We agree that under Count Five of the information the state failed to prove the crime charged, a violation of section 794.-011, Florida Statutes (1985), by failing to prove that the appellant caused his mouth to unite with the sexual organ of the minor victim.
Accordingly, we reverse only the conviction under Count Five, affirm all other convictions for the remaining counts, and remand for resentencing.
DANAHY, A.C.J., and CAMPBELL and THREADGILL, JJ., concur.
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Ortiz v. State, 884 So. 2d 70 (Fla. 2d DCA 2004)…conclusively show that Ortiz is entitled to no relief. Ortiz was convicted by a jury of five counts of capital sexual battery and one count of kidnaping. This court reversed one sexual battery conviction and affirmed the others. Hernandez v. State, 586 So. 2d 1344 (Fla. 2d DCA 1991). Subsequently, Ortiz filed a facially sufficient motion for DNA testing of the anal, vaginal, and oral swabs from the rape kit, the victim’s clothing, and the victim’s saliva. In response to the circuit court’s order to show cause…