Opinion
Case No. 5D18-706
07-26-2019
Robert CARABALLO, Appellant, v. STATE of Florida, Appellee.
Steven J. Parton, of Mandell Law, P.A., Winter Park, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Steven J. Parton, of Mandell Law, P.A., Winter Park, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
We affirm Appellant's judgment and sentence in all respects except as to the conviction on count thirty, one of fifty-one convictions for intentional viewing of materials depicting a sexual performance by a child in violation of section 827.071(5)(a), Florida Statutes (2017). Even when viewed in the light most favorable to the State, see Robinson v. State, 267 So.3d 567, 568 (Fla. 1st DCA 2019), the material did not meet the statutory definition of sexual performance. See § 827.071(1)(h)–(i), Fla. Stat. (2017). Thus, the trial court erred in refusing to grant a judgment of acquittal as to this count. Accordingly, we remand for the trial court to vacate the adjudication of guilt and sentence as to count thirty only.
AFFIRMED in part; REVERSED in part; and REMANDED.
ORFINGER, COHEN, and GROSSHANS, JJ., concur.