Downey v. State

578 So. 2d 792, 1991 Fla. App. LEXIS 3558, 1991 WL 56384

Opinion

DAUKSCH, Judge.

This is an appeal from convictions and sentences for kidnapping and sexual battery. Appellant contends on appeal that the trial court erred by instructing the jury on a lesser offense. He was charged with sexual battery with force likely to cause serious injury in violation of section 794.-011(3), Florida Statutes (1989). Based upon the erroneous jury instruction he was convicted of a lesser sexual battery by threat to use force or violence likely to cause serious injury in violation of section 794.-011(4)(b), Florida Statutes (1989). Because the allegations contained in the information do not support the convictions of sexual battery by threat of force or violence, appellant’s convictions for those offenses are reversed. See State v. Daophin, 533 So.2d 761 (Fla.1988); Bateson v. Dugger, 556 So.2d 498 (Fla. 1st DCA 1990). The information included sufficient allegations and the evidence is sufficient to establish his guilt of the lesser included offense of sexual battery with slight force. See Bragg v. State, 433 So.2d 1375 (Fla. 2d DCA 1983). The jury was instructed on this offense so entry of convictions for those offenses is proper. See Dean v. State, 406 So.2d 1162 (Fla. 2d DCA 1981), rev. den., 413 So.2d 877 (Fla.1982).

REVERSED and REMANDED FOR RE-SENTENCING.

COBB and COWART, JJ., concur.