Summary
remanding for new trial where it was impossible to tell from the general verdict on what basis the jury convicted
Summary of this case from Erlsten v. StateOpinion
No. 98-1276
Opinion filed April 30, 1999. Rehearing Denied June 3, 1999.
An appeal from the Circuit Court for Bay County, Don T. Sirmons, Judge.
Nancy A. Daniels, Public Defender; Mark E. Walker, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Denise O. Simpson, Assistant Attorney General, Tallahassee, for Appellee.
Conviction of a nonexistent crime is fundamental error. Under section 800.04, Florida Statutes (1997), "one 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.