06-6119 MARK WESTLEY ERWIN v. STATE OF FLORIDA

State: Florida

Court: Florida First District Court

Docket No: 06-6119

Case Date: 05/08/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA MARK WESTLEY ERWIN, Appellant, v. STATE OF FLORIDA, Appellee. ______________________/ Opinion filed May 8, 2008. An appeal from the Circuit Court for Walton County. Kelvin Wells, Judge. Michael D. Weinstock, Niceville, for Appellant. Bill McCollum, Attorney General, Carolyn Mosley, Trisha Meggs Pate, and Terry P. Roberts, Assistant Attorneys General, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED. CASE NO.: 1D06-6119

PER CURIAM. We affirm appellant's convictions for attempted sexual battery while in a position of familial or custodial authority in violation of sections 794.011(8)(b) and 777.04, Florida Statutes (2005), for contributing to the delinquency of a child by an

act causing or tending to cause the child to become a delinquent in violation of section 827.04(1)(a), and for using a computer to facilitate or solicit the sexual conduct of a child in violation of section 847.0135(2). However, as the state correctly concedes, appellant's conviction for attempted unlawful sexual activity with a person 16 or 17 years of age must be vacated because the allegations of the information fail to allege facts that would constitute "sexual activity" as defined in section 794.05(1). AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. WOLF, KAHN, AND VAN NORTWICK, JJ., CONCUR.

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