BANKS v. STATE (1999)

District Court of Appeal of Florida,First District.

Eddie Lee BANKS, Appellant, v. STATE of Florida, Appellee.

No. 98-128

Decided: February 12, 1999

Nancy A. Daniels, Public Defender, Carol Ann Turner, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General, J. Ray Poole, Assistant Attorney General, Tallahassee, for Appellee.

Eddie Banks appeals his convictions for sexual battery upon a person over 12 years of age and lewd and lascivious act, contending that conviction on both counts violated the bar against double jeopardy. The state concedes that the trial court erred in adjudicating Banks guilty of lewd and lascivious act, because the two offenses are mutually exclusive. State v. Hightower, 509 So.2d 1078 (Fla.1987). A defendant cannot be convicted of both sexual battery and lewd and lascivious conduct arising from the same sexual act. Vitagliano v. State, 680 So.2d 500 (Fla. 1st DCA 1996); Jozens v. State, 649 So.2d 322 (Fla. 1st DCA 1995).

We therefore reverse the conviction and sentence for lewd and lascivious conduct, the lesser offense, and remand with directions to the trial court to vacate same. See State v. Barton, 523 So.2d 152 (Fla.1988).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

ERVIN, J.

BARFIELD, C.J., and JOANOS, J., concur.

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