Darby v. State

689 So. 2d 427, 1997 Fla. App. LEXIS 2346, 1997 WL 115276

Opinion

PER CURIAM.

We find no merit to the challenges raised by Darby to his conviction and sentence for section 794.011(4)(b), Florida Statutes (1995) and affirm the same. We do, however, remand this cause solely for the trial court to delete any reference to a violation of section 794.011(4)(a) where it is clear from the state’s evidence at trial that the victim was not “physically helpless to resist” where she was able to communicate her unwillingness to participate in the sexual acts to appellant. See Bullington v. State, 616 So.2d 1036, 1038 (Fla. 3d DCA 1993); Coley v. State, 616 So.2d 1017, 1020 (Fla. 3d DCA 1993); State v. Sedia, 614 So.2d 533, 534 (Fla. 4th DCA 1993).

Affirmed but remanded with instructions.