Jose Macias v. State of Florida ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOSE MACIAS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-3509
[May 4, 2016]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No.
562013CF000310A.
Carey Haughwout, Public Defender, and Jeffrey L. Anderson,
Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
A jury found Appellant, Jose Macias, guilty of one count of lewd or
lascivious battery, one count of lewd or lascivious molestation, one count
of kidnapping, and one count of a burglary of a dwelling with an assault
or battery. The court adjudicated Appellant guilty and sentenced him on
all counts except for the lewd or lascivious molestation count which it
“held in abeyance.” On appeal, Appellant takes issue with several of the
court’s evidentiary rulings at trial. He also argues that the court’s
decision to hold his lewd or lascivious molestation conviction in abeyance
constitutes a violation of double jeopardy.
We find no error in any of the court’s underlying evidentiary rulings
and thus affirm Appellant’s convictions and sentences for lewd or
lascivious battery, kidnapping, and burglary of a dwelling with an
assault or battery without further comment. However, we agree with
Appellant that the court’s decision to hold the lewd or lascivious
molestation count in abeyance violated double jeopardy as Appellant
could not be convicted of both lewd or lascivious battery and lewd or
lascivious molestation arising out of the same conduct. Graves v. State,
95 So. 3d 1033, 1036 (Fla. 5th DCA 2012). The State properly concedes
error on this issue. Accordingly, we reverse and remand with
instructions that the trial court vacate the verdict of guilt as to lewd or
lascivious molestation count. See Burford v. State, 8 So. 3d 478, 480–81
(Fla. 4th DCA 2009) (remanding for vacation of conviction for offense
which was held “in abeyance” because the conviction violated double
jeopardy).
Affirmed in part, reversed in part, and remanded.
GROSS and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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