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728 So. 2d 768

Banks v. State

District Court of Appeal of Florida

Decided February 12, 1999

District Court of Appeal of Florida · decided 1999-02-12

Cited by 1 later decisions — most recently November 2005

1 state decisions

Relies on 523 So. 2d 152 - State v. Barton · 509 So. 2d 1078 - State v. Hightower · Jozens v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1999-02-12

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ERVIN, J.

¶1Eddie Banks appeals his convictions for sexual battery upon a person over 12 years of age and lewd and lascivious act, contending that conviction on both counts violated the *769bar against double jeopardy. The state concedes that the trial court erred in adjudicating Banks guilty of lewd and lascivious act, because the two offenses are mutually exclusive. State v. Hightower, 509 So.2d 1078 (Fla.1987). A defendant cannot be convicted of both sexual battery and lewd and lascivious conduct arising from the same sexual act. Vitagliano v. State, 680 So.2d 500 (Fla. 1st DCA 1996); Jozens v. State, 649 So.2d 322 (Fla. 1st DCA 1995).

¶2We therefore reverse the conviction and sentence for lewd and lascivious conduct, the lesser offense, and remand with directions to the trial court to vacate same. See State v. Barton, 523 So.2d 152 (Fla.1988).

¶3AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

BARFIELD, C.J., and JOANOS, J., concur.
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