D.B., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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D.B., a juvenile, was adjudicated delinquent for both sexual battery and lewd, lascivious or indecent act arising from the same incident. The appellate court reversed the adjudication on one count and struck an improperly imposed public defender fee due to lack of notice and hearing opportunity.
A juvenile cannot be adjudicated delinquent for both sexual battery and lewd, lascivious or indecent act when arising from the same incident, as these crimes are mutually exclusive. A public defender fee must be stricken when imposed without oral notice and opportunity for a hearing, though the state may seek reimposition upon proper notice.
[1] A defendant cannot be convicted of both sexual battery and lewd, lascivious, or indecent act arising from the same incident, as these crimes are mutually exclusive.
[2] A trial court must provide a defendant with prior notice and an opportunity to be heard before imposing a public defender fee.
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Join FLexlaw to unlock all legal intelligence“It is well settled that the crimes of sexual battery and lewd and lascivious assault are mutually exclusive and a defendant cannot be convicted of both crimes arising from the same incident.”
Establishes the legal principle that these two offenses cannot both stand when arising from the same factual occurrence.
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Join FLexlaw to unlock all legal intelligenceD.B. was charged by delinquency petition with sexual battery and lewd assault arising out of the same incident. The trial court adjudicated him delinq…
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SHAHOOD, J.
Appellant, D.B., appeals from a delinquency disposition order adjudicating him delinquent for the offenses of sexual battery and lewd, lascivious or indecent act. Appellant raises five points on appeal. We hold that the trial court erred in adjudicating appellant delinquent for both sexual battery and lewd, lascivious or indecent act, and further erred in imposing a public defender fee without giving appellant prior notice and an opportunity to be heard. We affirm the remaining three issues raised by appellant.
In this case, appellant was charged by delinquency petition with sexual battery and lewd assault arising out of the same incident and was adjudicated delinquent on both counts. Appellee, State of Florida, concedes, and we agree, that adjudication on both counts is improper. It is well settled that the crimes of sexual battery and lewd and lascivious assault are mutually exclusive and a defendant cannot be convicted of both crimes arising from the same incident. See State v. Hightower, 509 So. 2d 1078 (Fla.1987); Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994). Since these crimes arise out of the same incident, they cannot both stand, and the lesser crime of lewd, lascivious or indecent act must be vacated.
As to the imposition of a public defender fee, Florida Rule of Criminal Procedure 3.720(d)(1) requires a trial court to orally notify a defendant at sentencing of the imposition of a public defender’s lien, the statutory authority for the imposition of the lien, the amount of the lien, and an accused’s, right to a hearing to contest the amount of the lien. In this case, since notice and opportunity to be heard were not given, the public defender’s lien should be stricken, but without prejudice to the state to seek reimposition upon proper notice. See Walker v. State, 710 So. 2d 699 (Fla. 2d DCA 1998).
Based on the foregoing, we reverse and remand with directions to the trial court to vacate the adjudication for a lewd, lascivious or indecent act, and to strike the public defender’s lien in accordance with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
DELL and GROSS, JJ., concur.
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A.M.P. v. State, 927 So. 2d 97 (Fla. 5th DCA 2006)…Orange County for attorney’s fees in the amount of $287.50.” The State concedes that the award should be stricken because the State failed to give A.M.P. notice of its intent to impose fees and an opportunity to object to the amount. D.B. v. State, 761 So. 2d 1130 (Fla. 4th DCA 1998); J.B. v. State, 733 So. 2d 1134 (Fla. 4th DCA 1999). However, this is done without prejudice to the State to seek reimposition upon proper notice. D.B, supra; J.B., supra. AFFIRMED in part, REVERSED in part and REMANDED. THOMPS…
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J.F. v. State, 961 So. 2d 991 (Fla. 5th DCA 2007)…oncedes error. Accordingly, the order requiring J.F. to pay attorney’s fees is hereby stricken, without prejudice. On remand, the fee obligation may be re-imposed, provided the trial court complies with the provisions of the rule. See D.B. v. State, 761 So. 2d 1130 (Fla. 4th DCA 1998). Furthermore, based upon our review of the record, we direct that, on remand, this case must be assigned to a different judge. Order STRICKEN; case REMANDED. THOMPSON and MONACO, JJ., concur.…
Authorities Cited
- State v. Hightower, 509 So. 2d 1078 (Fla. 1987)
- D & D Hotdogs & Beef, Inc. v. Plantation Fountains Assocs. Ltd. P'ship, 634 So. 2d 714 (Fla. 4th DCA 1994)
- Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994)
- Fusik v. State, 710 So. 2d 699 (Fla. 5th DCA 1998)