IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
RICHARD LEROY CONNOLLY,
Appellant,
v. Case No. 5D17-1142
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed March 9, 2018
Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.
James S. Purdy, Public Defender, and
Ailene S. Rogers, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Kristen L Davenport,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Appellant was convicted after trial of sexual battery upon a person aged twelve
years or older but less than eighteen years without causing serious personal injury; lewd
or lascivious battery upon a child aged twelve years or older but less than sixteen years
of age; and lewd or lascivious molestation upon a child twelve years of age or older but
less than sixteen years of age. Appellant raises two arguments on appeal.
First, he asserts that the convictions for the sexual battery and lewd or lascivious
battery violate the constitutional prohibition against double jeopardy1 because both
convictions are based upon the same criminal act. The State concedes error. See
Shipman v. State, 171 So. 3d 199, 200 (Fla. 1st DCA 2015) (affirming defendant’s
conviction for sexual battery on a person aged twelve years or older, but reversing
conviction for lewd or lascivious battery on a person aged twelve years or older but less
than sixteen years of age based on double jeopardy principles because the record
indicated that the charges were based upon the same event). Therefore, we reverse the
conviction for lewd or lascivious battery. See State v. Shelley, 176 So. 3d 914, 919–20
(Fla. 2015) (“When an appellate court determines that dual convictions are impermissible,
the appellate court should reverse the lesser offense conviction and affirm the greater.”
(quoting Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006))).
Appellant’s second argument is that there is a sentencing error in his conviction
for lewd or lascivious molestation because the trial court’s written sentence differs from
its oral pronouncement of sentence on this count. The error has not been preserved for
review. Florida Rule of Appellate Procedure 9.140(e) provides that a sentencing error
may not be raised on appeal unless the alleged error has first been brought to the
attention of the lower tribunal at the time of sentencing or by a Florida Rule of Criminal
Procedure 3.800(b) motion. “A written sentencing order that deviates from the [court’s]
oral pronouncement of sentence constitutes a ‘sentencing error’ subject to rule 3.800(b).”
1 See Amend. V, U.S. Const.; Art I, § 9, Fla. Const.
2
Brown v. State, 225 So. 3d 319, 320 (Fla. 3d DCA 2017) (citing Jackson v. State, 983 So.
2d 562, 572 (Fla. 2008)). Because Connolly did not file a rule 3.800(b) motion or object
to the error at the time of sentencing, his remedy is to file a legally sufficient motion with
the trial court to correct the sentence pursuant to rule 3.800(a). See id. at 321 (citing
Williams v. State, 957 So. 2d 600, 601 (Fla. 2007)).
Accordingly, we reverse Appellant’s conviction for lewd or lascivious battery and
remand with instructions that the trial court vacate this conviction and sentence. We affirm
the remaining convictions and resulting sentences, but do so without prejudice to
Appellant filing a legally sufficient motion under rule 3.800(a) to correct his sentence for
the lewd or lascivious molestation conviction.
AFFIRMED in part; REVERSED in part; and REMANDED.
COHEN, C.J., BERGER and LAMBERT, JJ., concur.
3