PATRICK POOLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We reverse and remand this case because the verdict form reflects appellant was charged with committing sexual battery upon a person 12 years of age or older while using or threatening to use a deadly weapon in violation of section 794.011(3), Florida Statutes (1993). However, the trial court instructed the jury on section 794.011(4), Florida Statutes (1993)(sexual battery on a person 12 years of age or older without that person’s consent and under specified circumstances). (R. at 14.) The former crime is a life felony, and the latter is a first-degree felony. (R. at 37-38.) As a result, the trial court is to conduct an evidentiary hearing or attach portions of the record conclusively refuting appellant’s claim that defense counsel provided ineffective assistance by failing to object to the erroneous instruction.
REVERSED and REMANDED.
DAVIS, PADOVANO and BROWNING, JJ., concur.
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Poole v. State, 826 So. 2d 429 (Fla. 1st DCA 2002)…n 794.011(4), Florida Statutes (1993)(sexu-al battery on a person 12 years of age or older without that person’s consent and under specified circumstances). The former crime is a life felony, and the latter is a first-degree felony. Poole v. State, 778 So. 2d 1048 (Fla. 1st DCA 2001)(record citations omitted). This court instructed the trial court to conduct an evidentiary hearing on remand the second time or to attach portions of the record conclusively refuting Poole’s claim that defense counsel provided in…