Cushion v. State

637 So. 2d 2, 1994 WL 123671

Opinion

637 So.2d 2 (1994)

Willie Randall CUSHION, Appellant,
v.
The STATE of Florida, Appellee.

Nos. 93-892, 93-891.

District Court of Appeal of Florida, Third District.

April 12, 1994. Rehearing Denied June 14, 1994.

Bennett H. Brummer, Public Defender and Neil Rose, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Joni Braunstein, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART, and GERSTEN, JJ.

PER CURIAM.

In case number 93-892, we affirm three of the four counts of capital sexual battery against appellant, and reverse on count II. The live trial testimony concerning this count unequivocally contradicted earlier testimony and thus renders the earlier testimony insufficient for consideration by the jury. Tafero v. State, 406 So.2d 89, 93 n. 8 (Fla. 3d DCA 1981). Thus, the trial court erred in denying the motion for judgment of acquittal on count II.

Further, the written order of revocation of probation must be corrected to properly reflect the trial court's oral pronouncements. The order correctly cites appellant's convictions as grounds for revocation. However, appellant's failure to pay costs of supervision should be stricken from the order as an additional ground for revocation because the trial court orally found that the State had failed to prove this allegation.

In case number 93-891, we affirm the convictions and sentences in all respects.

Affirmed in part; reversed and remanded in part.