Opinion
No. 93-2818.
September 8, 1995.
Appeal from the Circuit Court for Volusia County; John W. Watson, III, Judge.
James B. Gibson, Public Defender, and Susan A. Fagan, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Steven J. Guardiano, Asst. Atty. Gen., Daytona Beach, for appellee.
Donald J. Hartman was convicted of sexual battery on his nine-year old stepson as well as lewd and lascivious assault arising from the same incident.
The only error we find in the record is that the trial court should have granted the defense motion for judgment of acquittal on the lewd and lascivious charge.
It is clear from the record that the only act proven as a basis for the lewd and lascivious charge was the same act necessary to sustain the sexual battery charge.
AFFIRMED in part; REVERSED as to the conviction for lewd and lascivious conduct with instructions to grant an acquittal as to that charge.
COBB, GOSHORN and HARRIS, JJ., concur.