EDDIE LEE BANKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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ERVIN, J.
Eddie Banks appeals his convictions for sexual battery upon a person over 12 years of age and lewd and lascivious act, contending that conviction on both counts violated the bar against double jeopardy. The state concedes that the trial court erred in adjudicating Banks guilty of lewd and lascivious act, because the two offenses are mutually exclusive. State v. Hightower, 509 So. 2d 1078 (Fla.1987). A defendant cannot be convicted of both sexual battery and lewd and lascivious conduct arising from the same sexual act. Vitagliano v. State, 680 So. 2d 500 (Fla. 1st DCA 1996); Jozens v. State, 649 So. 2d 322 (Fla. 1st DCA 1995).
We therefore reverse the conviction and sentence for lewd and lascivious conduct, the lesser offense, and remand with directions to the trial court to vacate same. See State v. Barton, 523 So. 2d 152 (Fla.1988).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
BARFIELD, C.J., and JOANOS, J., concur.
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Citator
Cited By
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Johnson v. State, 913 So. 2d 1291 (Fla. 2d DCA 2005)…, we also believe that the lewd and lascivious conviction must be vacated because it violates double jeopardy. See Tannihill v. State, 848 So. 2d 442, 444 (Fla. 4th DCA 2003); Rios v. State, 791 So. 2d 1208, 1210 (Fla. 5th DCA 2001); Banks v. State, 728 So. 2d 768 (Fla. 1st DCA 1999). We accordingly reverse the lewd and lascivious conviction. Reversed. FULMER, C.J., and WALLACE, J., Concur. . Although Johnson is raising this double jeopardy claim for the first time on appeal, this court has jurisdiction pu…
Authorities Cited
- State v. Barton, 523 So. 2d 152 (Fla. 1988)
- State v. Hightower, 509 So. 2d 1078 (Fla. 1987)
- Jozens v. State, 649 So. 2d 322 (Fla. 1st DCA 1995)
- Vitagliano v. State, 680 So. 2d 500 (Fla. 1st DCA 1996)