Kever v. State

704 So. 2d 222, 1998 Fla. App. LEXIS 880, 1998 WL 17026

Opinion

PER CURIAM.

In this direct criminal appeal, the appellant challenges his convictions and sentences for two counts of sexual battery upon a mentally defective person, one count of attempted sexual battery upon a mentally defective person, and four counts of lewd and lascivious assault. Because the evidence presented at trial was insufficient as a matter of law to prove that the victim was “mentally defective” as that term is defined in section 794.011(l)(b), Florida Statutes, we reverse the appellant’s convictions for sexual battery upon a mentally defective person and attempted sexual battery upon a mentally defective person and direct the trial court on remand to enter judgments of conviction on the lesser included offenses of sexual battery and attempted sexual battery. See Mathis v. State, 682 So.2d 175 (Fla. 1st DCA 1996); § 924.34, Fla. Stat. The appellant’s convictions for lewd and lascivious assault are affirmed. Because the appellant must be re-sentenced under a revised scoresheet, we vacate all of his sentences- and direct the trial court on remand to resentence the appellant on all convictions using a revised scoresheet.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ALLEN, WEBSTER and DAVIS, JJ., concur.