VICTORIO HUIPIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Victorio Huipio was convicted of multiple sexual battery and assault offenses and sentenced to life imprisonment plus thirty years. On appeal, he challenged the denial of his motion to suppress identification evidence, a jury instruction denial, and the trial court's failure to enter judgments on two counts. The court affirmed all challenges, holding that the trial court properly handled the duplicative counts by not entering convictions.
The trial court properly declined to enter judgments of conviction on counts II and IV because those guilty verdicts were nullities—the offenses were duplicative of counts I and V respectively, and no convictions for the duplicative counts could be legally entered. No acquittals were required.
[1] A conviction for armed sexual battery subsumes a conviction for armed indecent assault when the same conduct forms the basis for both charges.
[2] A conviction for attempted armed sexual battery subsumes a conviction for armed lewd or lascivious act in the presence of a child when the same conduct forms the basis fo…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“convictions for counts I and II, and counts TV and V, were duplica-tive since the armed sexual -battery of count I, subsumed the armed indecent assault charged in count II, and the attempted armed sexual battery of count V subsumed the armed lewd and lascivious act offense charged in count TV”
Establishes the legal basis for why counts II and IV were duplicative and could not support separate convictions.
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Join FLexlaw to unlock all legal intelligenceHuipio was convicted by jury of armed sexual battery (count I), two counts of armed indecent assault (counts II and III), armed lewd or lascivious act…
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PER CURIAM.
Victorio Huipio, the appellant, was convicted of armed sexual battery (count I), two counts of armed indecent assault (counts II and III), armed lewd or lascivious act in the presence of a child (count IV), attempted armed sexual battery (count V), and aggravated battery (count VI). Huipio was sentenced as an habitual felony offender to life imprisonment for count I and to thirty years imprisonment each for counts III, V and VI. No judgment or sentence was entered for either count II or IV.
On appeal, Huipio challenges the denial of his motion to suppress the victim’s identification of him as her attacker, the trial court’s refusal to give a specially requested jury instruction, and the trial court’s so-called “abatement” of counts II and IV.
We affirm as to the first two issues without further comment, writing only to address the latter of Huipio’s claims.
The State conceded, in light of cases like State v. Hightower, 509 So. 2d 1078 (Fla. 1987), Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994), and McConn v. State, 648 So. 2d 837 (Fla. 2d DCA 1995), that on the facts of this case, convictions for counts I and II, and counts TV and V, were duplica-tive since the armed sexual -battery of count I, subsumed the armed indecent assault charged in count II, and the attempted armed sexual battery of count V subsumed the armed lewd and lascivious act offense charged in count TV. Following the jury’s guilty verdict on counts I through VI, the trial judge did not enter a judgment of conviction or sentence on either count II or IV. The trial judge stated that these guilty findings on counts II and IV were “abated.” Huipio contends that this is insufficient to cure the harm.
We disagree because no convictions for counts II and IV were ever entered, making this case distinguishable from Morton v. State, 548 So. 2d 788 (Fla. 2d DCA 1989), cited by Huipio.
The jury’s guilty verdict on counts II and IV is simply a “nullity” upon which a judgment of conviction could not be entered.
Thus, there was no need for the trial judge to enter judgments of acquittals on those counts, as requested by appellant.
AFFIRMED.
STEVENSON, GROSS and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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)
- McCONN v. State, 648 So. 2d 837 (Fla. 2d DCA 1995)
- Emory Stevenson Morton v. State, 548 So. 2d 788 (Fla. 2d DCA 1989)