Festa v. State , 901 So. 2d 1026 ( 2005 )

901 So. 2d 1026 (2005)

Ronald M. FESTA, Appellant,
v.
STATE of Florida, Appellee.

No. 4D02-305.

District Court of Appeal of Florida, Fourth District.

May 25, 2005.

Neal Gary Rosensweig of Neal Gary Rosensweig, P.A., Hollywood, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We reverse appellant's conviction for aggravated child abuse because the trial court erred in prohibiting appellant from obtaining the victim's medical and mental health records, which contained evidence highly relevant to appellant's defense. We remand for a new trial. However, appellant can be retried for no more than child abuse under section 827.03(1), Florida Statutes (1999), because, as we ruled in the co-defendant's appeal, the evidence was insufficient for the greater charge of aggravated child abuse. See Brumit v. State, 843 So. 2d 978 (Fla. 4th DCA 2003).

Reversed and remanded for a new trial.

WARNER, KLEIN and TAYLOR, JJ., concur.