Opinion
No. 1D00-1511.
Opinion filed February 14, 2001.
An appeal from the Circuit Court for Bay County. Don T. Sirmons, Judge.
Reversed and Remanded.
Appellant, pro se.
Robert A. Butterworth, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
We reverse and remand this case because the verdict form reflects appellant was charged with committing sexual battery upon a person 12 years of age or older while using or threatening to use a deadly weapon in violation of section 794.011(3), Florida Statutes (1993). However, the trial court instructed the jury on section 794.011(4), Florida Statutes (1993) (sexual battery on a person 12 years of age or older without that person's consent and under specified circumstances). (R. at 14.) The former crime is a life felony, and the latter is a first-degree felony. (R. at 37-38.) As a result, the trial court is to conduct an evidentiary hearing or attach portions of the record conclusively refuting appellant's claim that defense counsel provided ineffective assistance by failing to object to the erroneous instruction.
REVERSED and REMANDED.
DAVIS, PADOVANO and BROWNING, JJ., Concur.