CARABALLO v. STATE (2019)

District Court of Appeal of Florida, Fifth District.

Robert CARABALLO, Appellant, v. STATE of Florida, Appellee.

Case No. 5D18-706

Decided: July 26, 2019

Steven J. Parton, of Mandell Law, P.A., Winter Park, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

We affirm Appellant's judgment and sentence in all respects except as to the conviction on count thirty, one of fifty-one convictions for intentional viewing of materials depicting a sexual performance by a child in violation of section 827.071(5)(a), Florida Statutes (2017). Even when viewed in the light most favorable to the State, see Robinson v. State, 267 So.3d 567, 568 (Fla. 1st DCA 2019), the material did not meet the statutory definition of sexual performance. See § 827.071(1)(h)–(i), Fla. Stat. (2017). Thus, the trial court erred in refusing to grant a judgment of acquittal as to this count. Accordingly, we remand for the trial court to vacate the adjudication of guilt and sentence as to count thirty only.

AFFIRMED in part; REVERSED in part; and REMANDED.

PER CURIAM.

ORFINGER, COHEN, and GROSSHANS, JJ., concur.

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