Hill v. State
Hill v. State
Opinion of the Court
Appellant argues that his convictions for sexual battery.by person in a position of familial or custodial authority (count I) and lewd or lascivious battery (count II) based on a single sexual act violate the constitutional prohibition against double jeopardy. In light of the State’s concession of error, we reverse Appellant’s conviction for count II and remand for the trial court to vacate that conviction.
The double jeopardy violation resulting from Appellant’s dual convictions in this case was not cured by the trial court adjudicating Appellant guilty of both offenses but holding sentencing on count II “in abeyance.” See Bolding v. State, 28 So.3d 956, 957 (Fla. 1st DCA 2010) (“When
In sum, we affirm Appellant’s conviction and sentence for sexual battery by person in a position of familial or custodial authority, but reverse Appellant’s conviction for lewd or lascivious battery and remand with instructions that the trial court vacate the latter conviction.
AFFIRMED in part; REVERSED in part; REMANDED with instructions.
. After Appellant's trial counsel raised the double jeopardy issue at the sentencing hearing, the prosecutor replied:
I can address that real quick. I believe the law would be here that ... he was found guilty of both, but he should not be sentenced on both. As to Count 2, Count 2 exists if anything ever happens to Count 1, but he would not — should not be sentenced on it, and my thought is I would not include that on the score sheet, because I do believe that that count, in this factual situation, is subsumed in what was found by the jury in Count 1. So my suggestion is that ... goes in abeyance, and only would arise if anything ever happened to Count 1.
When asked by the trial court whether "that" was consistent with his understanding, Appellant’s trial counsel replied, "It is, Your Hon- or.”
Reference
- Full Case Name
- Thomas HILL v. STATE of Florida
- Cited By
- 3 cases
- Status
- Published