CARL MICHAEL EDWARDS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edwards' conviction for sexual battery upon a mentally defective person under section 794.011(4)(e) is affirmed, but his conviction for sexual battery upon a child under section 800.04(2) is vacated as the two offenses are mutually exclusive for a single incident, requiring remand for resentencing.
When sexual battery and lewd assault charges arise from a single incident, only one conviction may stand because the crimes are mutually exclusive.
[1] Sexual battery and lewd assault convictions arising from a single incident are mutually exclusive, permitting conviction on only one count.
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Join FLexlaw to unlock all legal intelligence“The crimes of lewd assault and sexual battery are mutually exclusive when they involve a single incident.”
Court explaining the legal principle requiring vacation of the second conviction
Carl Michael Edwards was convicted under two counts: sexual battery upon a mentally defective person under section 794.011(4)(e), a first-degree felon…
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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 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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Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994)…ge contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive. Id. at 1079. Thus, a defendant cannot be convicted of both crimes if the charges arise out of the same act. Accord Edwards v. State, 613 So. 2d 508 (Fla. 5th DCA 1993). The information in this case charges defendant with one count of sexual battery “by penetrating [the victim’s] vagina with his fingers” and with a second count of lewd and lascivious assault “by touching and/or fondling [the vi…
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D.D.M. v. State, 662 So. 2d 384 (Fla. 5th DCA 1995)…ive. See State v. Hightower, 509 So. 2d 1078, 1079 n. 4 (Fla.1987); Chaplin v. State, 622 So. 2d 165 (Fla. 2d 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 established by additional evidence. Thus, the adjudication and commitment for the charge of lewd act upon a child must b…
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ROE v. State, 654 So. 2d 1287 (Fla. 1st DCA 1995)…conviction. See State v. Hightower, 509 So. 2d 1078,1079 n. 4 (Fla.1987); Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994); Lewis v. State, 626 So. 2d 1073 (Fla. 1st DCA 1993); Walker v. State, 622 So. 2d 630 (Fla. 3d DCA 1993); Edwards v. State, 613 So. 2d 508 (Fla. 5th DCA 1993). WEBSTER and LAWRENCE, JJ., concur.…
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- State v. Hightower, 509 So. 2d 1078 (Fla. 1987)