Opinion
Case No. 96-803
Opinion filed March 12, 1997.
An appeal from the Circuit Court for Monroe County, Steven P. Shea, Judge.
LOWER TRIBUNAL NO. 95-124
Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General and Roberta G. Mandel, Assistant Attorney General, for appellee.
Before GERSTEN, GREEN, and SHEVIN, JJ.
We find no merit to the challenges raised by Darby to his conviction and sentence for section 794.011(4)(b), Florida Statutes (1995) and affirm the same. We do, however, remand this cause solely for the trial court to delete any reference to a violation of section 794.011(4)(a) where it is clear from the state's evidence at trial that the victim was not "physically helpless to resist" where she was able to communicate her unwillingness to participate in the sexual acts to appellant. See Bullington v. State, 616 So.2d 1036, 1038 (Fla. 3d DCA 1993);Coley v. State, 616 So.2d 1017, 1020 (Fla. 3d DCA 1993); State v. Sedia, 614 So.2d 533, 534 (Fla. 4th DCA 1993).
Affirmed but remanded with instructions.