JAMES GOLDEN, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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James Golden petitioned for a new appeal claiming ineffective assistance of appellate counsel for failing to challenge the trial court's denial of his motion for judgment of acquittal on count two. The appellate court found merit in this claim, determined that evidence was insufficient to sustain the attempted capital sexual battery conviction, and vacated that conviction in favor of a lesser included offense.
The court found appellate counsel was ineffective in failing to raise the properly preserved issue. The evidence was insufficient as a matter of law to sustain conviction for attempted capital sexual battery, but sufficient to support conviction for the lesser included offense of lewd and lascivious act upon a child.
[1] A conviction for attempted capital sexual battery may be vacated when the evidence is insufficient as a matter of law to sustain such a conviction.
[2] An appellate court may, in the interest of judicial economy, vacate a conviction and direct the trial court to enter a conviction for a lesser included offense when the e…
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Join FLexlaw to unlock all legal intelligence“Golden alleges that his appellate counsel erred in failing to raise on appeal the trial court's denial of his motion for judgment of acquittal as to the second count of the information.”
Establishes the core claim of ineffective assistance of appellate counsel
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Join FLexlaw to unlock all legal intelligenceGolden was convicted of capital sexual battery, which the trial court reduced to attempted capital sexual battery on count two after granting in part …
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PER CURIAM.
James Golden petitions this court for a new appeal pursuant to Florida Rule of Appellate Procedure 9.140®, alleging ineffective assistance of appellate counsel. We find merit to only one of Golden’s claims and write to address that one. Golden alleges that his appellate counsel erred in failing to raise on appeal the trial court’s denial of his motion for judgment of acquittal as to the second count of the information. The trial court granted the motion, in part, reducing the conviction from capital sexual battery to attempted capital sexual battery. After reviewing the record, however, we agree with Golden that the evidence was insufficient as a matter of law to sustain a conviction for attempted capital sexual battery.
We conclude that had Golden’s appellate counsel raised this properly preserved issue on appeal, we would have granted relief. In the interest of judicial economy, however, rather than give Golden a new appeal, we vacate the conviction and sentence for attempted capital sexual battery as to count two of the information. Because there was sufficient evidence to support a conviction for the lesser included offense of a lewd and lascivious act upon a child contrary to section 800.04(1), Florida Statutes (1998), we direct the trial court to enter a conviction for that offense on remand. See Ready v. State, 636 So. 2d 67 (Fla. 2d DCA 1994). On remand, the trial court shall also resentence Golden on this count. We deny Golden’s petition in all other respects and do not disturb the convictions or sentences entered on the other counts of the information.
Granted in part; denied in part; and remanded.
BLUE, A.C.J., and FULMER and SALCINES, JJ., Concur.