Florida District Courts of Appeal, 1999

Beck v. State

Beck v. State
Florida District Courts of Appeal · Decided April 30, 1999 · Benton, Booth, Ervin
732 So. 2d 427; 1999 Fla. App. LEXIS 5518; 24 Fla. L. Weekly Fed. D 1063 (Southern Reporter, Second Series)

Beck v. State

Opinion of the Court

PER CURIAM.

Conviction of a nonexistent crime is fundamental error. Under section 800.04, Florida Statutes (1997), β€œone cannot be convicted of a lewd and lascivious act upon a child under 12 years of age for conduct that ... constitutes the crime of sexual battery.” Jozens v. State, 649 So.2d 322, 323 (Fla. 1st DCA 1995). Since it is impossible to tell from the general verdict whether the jury convicted on this basis, the conviction on count two must be reversed and the case must be remanded for a new trial. See Mungin v. State, 689 So.2d 1026, 1030 (Fla. 1995).

Reversed and remanded.

ERVIN and BENTON, JJ., CONCUR. BOOTH, J., DISSENTS.

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