Robert Lee Smith v. State of Florida

Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D18-2218 _____________________________

ROBERT LEE SMITH,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Russell Healey, Judge.

October 17, 2019

PER CURIAM.

Robert Lee Smith, who was convicted of one count of sexual battery and one count of unlawful sexual activity with certain minors, claims these dual convictions violate double jeopardy because the latter count is subsumed in the former. The State agrees and concedes error. As such, we reverse and remand with instructions that Smith’s conviction and sentence as to the unlawful sexual activity with certain minors count be vacated. 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.”).

REVERSED and REMANDED. RAY, C.J., and MAKAR and M.K. THOMAS, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.