Richard L. Connolly v. State

240 So. 3d 846

• Court: District Court of Appeal of Florida
• Decided: March 5, 2018
• Docket: 5D17-1142
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

RICHARD LEROY CONNOLLY,

Appellant,

v. Case No. 5D17-1142

STATE OF FLORIDA,

Appellee.

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Opinion filed March 9, 2018

Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appellant was convicted after trial of sexual battery upon a person aged twelve

years or older but less than eighteen years without causing serious personal injury; lewd

or lascivious battery upon a child aged twelve years or older but less than sixteen years of age; and lewd or lascivious molestation upon a child twelve years of age or older but

less than sixteen years of age. Appellant raises two arguments on appeal.

First, he asserts that the convictions for the sexual battery and lewd or lascivious

battery violate the constitutional prohibition against double jeopardy1 because both

convictions are based upon the same criminal act. The State concedes error. See

Shipman v. State, 171 So. 3d 199, 200 (Fla. 1st DCA 2015) (affirming defendant’s

conviction for sexual battery on a person aged twelve years or older, but reversing

conviction for lewd or lascivious battery on a person aged twelve years or older but less

than sixteen years of age based on double jeopardy principles because the record

indicated that the charges were based upon the same event). Therefore, we reverse the

conviction for lewd or lascivious battery. See State v. Shelley, 176 So. 3d 914, 919–20

(Fla. 2015) (“When an appellate court determines that dual convictions are impermissible,

the appellate court should reverse the lesser offense conviction and affirm the greater.”

(quoting Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006))).

Appellant’s second argument is that there is a sentencing error in his conviction

for lewd or lascivious molestation because the trial court’s written sentence differs from

its oral pronouncement of sentence on this count. The error has not been preserved for

review. Florida Rule of Appellate Procedure 9.140(e) provides that a sentencing error

may not be raised on appeal unless the alleged error has first been brought to the

attention of the lower tribunal at the time of sentencing or by a Florida Rule of Criminal

Procedure 3.800(b) motion. “A written sentencing order that deviates from the [court’s]

oral pronouncement of sentence constitutes a ‘sentencing error’ subject to rule 3.800(b).”

1 See Amend. V, U.S. Const.; Art I, § 9, Fla. Const.

2 Brown v. State, 225 So. 3d 319, 320 (Fla. 3d DCA 2017) (citing Jackson v. State, 983 So.

2d 562, 572 (Fla. 2008)). Because Connolly did not file a rule 3.800(b) motion or object

to the error at the time of sentencing, his remedy is to file a legally sufficient motion with

the trial court to correct the sentence pursuant to rule 3.800(a). See id. at 321 (citing

Williams v. State, 957 So. 2d 600, 601 (Fla. 2007)).

Accordingly, we reverse Appellant’s conviction for lewd or lascivious battery and

remand with instructions that the trial court vacate this conviction and sentence. We affirm

the remaining convictions and resulting sentences, but do so without prejudice to

Appellant filing a legally sufficient motion under rule 3.800(a) to correct his sentence for

the lewd or lascivious molestation conviction.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN, C.J., BERGER and LAMBERT, JJ., concur.