Opinion
No. 88-01918.
October 11, 1991.
Appeal from the Circuit Court for Polk County; J. Dale Durrance, Judge.
Marshall G. Slaughter, Winter Haven, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Donna A. Provonsha, Asst. Atty. Gen., Tampa, and John K. Aguero, Asst. State Atty., Bartow, for appellee.
A jury found the appellant guilty of five counts of capital sexual battery and one count of kidnapping. On appeal he raises numerous trial and sentencing errors. We find merit in only one of his contentions. We agree that under Count Five of the information the state failed to prove the crime charged, a violation of section 794.011, Florida Statutes (1985), by failing to prove that the appellant caused his mouth to unite with the sexual organ of the minor victim.
Accordingly, we reverse only the conviction under Count Five, affirm all other convictions for the remaining counts, and remand for resentencing.
DANAHY, A.C.J., and CAMPBELL and THREADGILL, JJ., concur.