Banks v. State

District Court of Appeal of Florida

Banks v. State

728 So. 2d 768, 1999 Fla. App. LEXIS 1371, 1999 WL 77753

CourtDistrict Court of Appeal of Florida

DecidedFebruary 12, 1999

DocketNo. 98-128

StatusPublished

Cited by1 cases

This text of 728 So. 2d 768 (Banks v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Banks v. State, 728 So. 2d 768, 1999 Fla. App. LEXIS 1371, 1999 WL 77753 (Fla. Ct. App. 1999).

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Opinion

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 [769]*769bar 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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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 [769]*769bar 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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728 So. 2d 768, 1999 Fla. App. LEXIS 1371, 1999 WL 77753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-state-fladistctapp-1999.

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