Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2706 _____________________________ GARY WARREN, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant. _____________________________ On appeal from the Circuit Court for Leon County. James C. Hankinson, Judge. May 12, 2021 PER CURIAM. The State charged Appellant with seven counts of sexual crimes against his stepdaughter. A jury found him guilty as charged on all counts. Counts one, two, and three were for sexual battery by a familial or custodial authority, contrary to section 794.011(8)(b), Florida Statutes. Counts four and five were for lewd or lascivious molestation, contrary to section 800.04(5)(c)2., Florida Statutes. Counts six and seven were for battery of a child by expelling seminal fluid onto the victim, contrary to section 784.085, Florida Statutes. At sentencing, the State and defense stipulated that double jeopardy applied to prohibit sentencing for counts two, five, and seven. These three counts are worded identically on the charging document, with identical dates, to counts one, four, and six, respectively. The State disagreed with the defense, however, on whether count four, the remaining lewd or lascivious molestation charge, was necessarily subsumed by count three, the remaining sexual battery charge. Applying Lee v. State, 258 So. 3d 1297 (Fla. 2018), the trial court determined that it could only examine the language of the charging document for double jeopardy purposes and dismissed count four. The trial court sentenced Appellant to thirty years in prison for count one, ten years of probation for count three, and a concurrent term of five years in prison for count six. Appellant was also adjudicated to be a sexual predator. On appeal, Appellant challenges his judgment and sentences on several grounds. He argues that he should have been able to introduce evidence that the victim had viewed pornographic material online (to support his theory that the victim had knowledge of sexual matters, was sexually aggressive, and had fabricated her allegations against Appellant when he rejected her sexual advances). Appellant also asserts that the State made improper closing remarks and that his convictions for sexual battery and battery by expelling seminal fluid onto his victim violated double jeopardy. We affirm these issues without comment. On cross-appeal, the State argues the trial court should not have dismissed counts two, four, five, and seven on double jeopardy grounds at sentencing. Because the State stipulated to the dismissal of counts two, five, and seven at sentencing, it waived any objection to the trial court’s dismissal of those three counts. We therefore decline to reach the merits of those claims. But we agree with the State on its argument about count four, which it raised below and properly preserved for our review. As Appellant concedes, the trial court erred in dismissing count four because double jeopardy does not bar dual convictions for sexual battery and lewd and lascivious molestation. See Roughton v. State, 185 So. 3d 1207, 1210 (Fla. 2016) (holding that convictions for capital sexual battery and lewd or lascivious molestation, based on a single act, did not violate double jeopardy). Thus, we reverse the trial court’s dismissal of count four and remand with directions for the trial court to reinstate the conviction for lewd and lascivious molestation and to conduct sentencing for the reinstated count. AFFIRMED in part, REVERSED in part, and REMANDED. 2 MAKAR, WINOKUR, and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Baya Harrison, III, Monticello, for Appellant/Cross-Appellee. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant. 3