FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-2218
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ROBERT LEE SMITH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Russell Healey, Judge.
October 17, 2019
PER CURIAM.
Robert Lee Smith, who was convicted of one count of sexual
battery and one count of unlawful sexual activity with certain
minors, claims these dual convictions violate double jeopardy
because the latter count is subsumed in the former. The State
agrees and concedes error. As such, we reverse and remand with
instructions that Smith’s conviction and sentence as to the
unlawful sexual activity with certain minors count be vacated. 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.”).
REVERSED and REMANDED.
RAY, C.J., and MAKAR and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.
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