FOLK v. STATE (2000)

Charles Folk appeals his convictions of handling and fondling a child under the age of sixteen years (count II), lewd and lascivious conduct in the presence of a child under the age of sixteen years (count III), sexual activity on a child by a person in a position of familial authority (count V), and possession of a legend drug with intent to dispense or deliver (count VI).   Folk raises numerous issues in this appeal, but we find merit only in his argument, with which the State concurs, that his convictions under both counts II and III constitute double jeopardy because the same conduct formed the basis of both counts.   See Audano v. State, 641 So.2d 1356 (Fla. 2d DCA 1994).   In addition, we note that Folk's judgment lists an incorrect statute for count II, which should be section 800.04(1).

Accordingly, we reverse Folk's conviction of count III and remand for resentencing with a recalculated scoresheet and for correction of Folk's judgment to reflect the proper statute for count II. Folk's convictions are affirmed in all other respects.

Reversed in part, affirmed in part, and remanded.

WHATLEY, Judge.

PARKER, A.C.J., and STRINGER, J., Concur.