Summary
In Bond v. State, 642 So.2d 674 (Fla. 5th DCA 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995), Bond appealed his conviction for two counts of lewd acts.
Summary of this case from Bond v. StateOpinion
No. 93-1432.
September 23, 1994.
Appeal from the Circuit Court for Orange County; Michael Cycmanick, Judge.
James B. Gibson, Public Defender, and S.C. Van Voorhees, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant Carl Bond was convicted of two counts of committing a lewd and lascivious act in the presence of a child, as a result of masturbating in the presence of two girls under 16 years of age. An Anders brief was filed, but after carefully reviewing the record as required by State v. Causey, 503 So.2d 321 (Fla. 1987), supplemental briefs were ordered.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
In State v. Hernandez, 596 So.2d 671 (Fla. 1992), the Florida Supreme Court held that it is the number of distinct lewd acts committed which determines the number of allowable convictions for committing a lewd act in the presence of a child, not the size of the audience or the number of witnesses. See also Roberts v. State, 620 So.2d 1082 (Fla. 2d DCA 1993). Since the evidence in this case established only one lewd act, one of the convictions must be reversed. Although only one of the girls testified that appellant was aware of their presence and knowingly continued to masturbate, the evidence is legally sufficient to support appellant's conviction for knowingly committing a lewd or lascivious act in the presence of a child under 16 years of age. In light of the reversal of one conviction, the case is remanded to the trial court for reconsideration of the sentence imposed.
The conviction and sentence as to count one is reversed with directions that appellant be discharged as to that charge. The conviction as to count two is affirmed and the case remanded for reconsideration of the sentence imposed therefor.
REVERSED IN PART, AFFIRMED IN PART AND REMANDED.
GOSHORN and PETERSON, JJ., concur.