Tillman v. State

559 So. 2d 754, 1990 Fla. App. LEXIS 2977, 1990 WL 57992

Opinion

ON PETITION FOR CLARIFICATION

PER CURIAM.

We grant appellee’s petition for clarification and substitute the following opinion.

We affirm without discussion the defendant’s conviction for attempted sexual battery. We reverse the conviction as to the charge of sexual battery. The state’s information charged the defendant with “penetration” but not “union with” under section 794.011(l)(h), Florida Statutes (1987), however, the state’s evidence at trial did not prove penetration occurred. In light of the sufficient record evidence that an attempted sexual battery occurred, we remand this matter, as we recently did in Firkey v. State, 557 So.2d 582 (Fla. 4th DCA 1990), with directions to the trial court to enter judgment for attempted sexual battery and resentence appellant accordingly.

GLICKSTEIN, WALDEN and WARNER, JJ., concur.