Opinion
Case No. 95-04888
Opinion filed April 2, 1997
Appeal from the Circuit Court for Lee County; William J. Nelson, Judge.
Milton Hirsch of Law Offices of Milton Hirsch, P.A., Miami, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
BY ORDER OF THE COURT:
UPON CONSIDERATION of the motion for certification filed by Appellant, it is hereby ordered that the motion is granted to the extent that the opinion dated November 22, 1996, is hereby withdrawn and the attached opinion is substituted therefor. In all other respects, the motion is denied.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
WILLIAM A. HADDAD, CLERK
cc: Milton Hirsch, Esq.
Wendy Buffington — AG, Tampa
Harold Kevin Scott appeals his conviction for a lewd and lascivious act in violation of section 800.04, Florida Statutes (1993). This court originally issued a per curiam affirmance of Scott's conviction and sentence. In a motion for certification, Scott suggests conflict with Smith v. State, 674 So.2d 791 (Fla. 5th DCA 1996). Although we share some of Scott's counsel's concerns regarding the facts of this case, in order for us to reach the same result as was reached in Smith (that the appellant was denied a fair trial) we would have to make factual determinations that are beyond the scope of our appellate function. The affirmance of Scott's conviction does not conflict with any legal holding in Smith.
Additionally, the majority of the legal errors presented in this appeal were not preserved by a contemporaneous objection at trial. Accordingly, we adhere to our affirmance of Scott's conviction and sentence.
FRANK, A.C.J., and BLUE and LAZZARA, JJ., Concur.