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Beck v. State

732 So. 2d 427, 1999 Fla. App. LEXIS 5518, 24 Fla. L. Weekly Fed. D 1063
District Court of Appeal of Florida·Decided April 30, 1999·No. No. 98-1276·Published·Cited by 9 cases

Opinion

PER CURIAM.

Conviction of a nonexistent crime is fundamental error. Under section 800.04, Florida Statutes (1997), “one cannot be convicted of a lewd and lascivious act upon a child under 12 years of age for conduct that ... constitutes the crime of sexual battery.” Jozens v. State, 649 So.2d 322, 323 (Fla. 1st DCA 1995). Since it is impossible to tell from the general verdict whether the jury convicted on this basis, the conviction on count two must be reversed and the case must be remanded for a new trial. See Mungin v. State, 689 So.2d 1026, 1030 (Fla.1995).

Reversed and remanded.

ERVIN and BENTON, JJ., CONCUR. BOOTH, J., DISSENTS.

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Beck v. State, 732 So. 2d 427, 1999 Fla. App. LEXIS 5518, 24 Fla. L. Weekly Fed. D 1063 (Fla. Ct. App. 1999).

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