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Webb v. State

The defendant was not entitled to the lessor of two punishments under the rule of lenity, because his convictions for child molestation and sexual battery were both felonies.

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Marcus Webb was indicted on three counts of child molestation. The State successfully moved the court to enter a judgment of nolle prosequi with respect to one count, and the jury acquitted Webb of one count. As for the remaining count, the jury’s verdict form indicates that it found him guilty of both child molestation and sexual battery. The trial court sentenced Webb on the child molestation conviction to 30 years, with the first 15 years in confinement and the remainder on probation. In Case No. A04A0860, Webb appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to convict him and alternatively that he should have been sentenced on the lesser included offense of sexual battery. Because the evidence presented at trial authorized a the jury to convict Webb, and because the trial court was authorized to merge the lesser conviction into the greater conviction, we find no merit in Webb’s arguments. We therefore affirm the judgment of conviction in Case No. A04A860. In case number A04A0861, the State argues that the trial court erred in failing to sentence Webb to life without parole. Because the State failed to provide proper notice of its intent to seek imprisonment of life without parole, we disagree with the State’s contentions. But because the trial court improperly imposed a period of probation as part of Webb’s sentence, we vacate the sentence in Case No. A04A0861 and remand this case to the trial court for resentencing in accordance with our opinion.

A04A0860

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