NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

NICHOLAS DENOLE MARSH, ) ) Appellant, ) )

v. ) Case No. 2D15

- 3566 ) STATE OF FLORIDA, ) ) Appellee. )

________________________________ ___ )

Opinion filed May 12 , 2017.

Appeal from the Circuit Court for Hillsborough County; Emmett L. Battles, Judge.

Howard L. Dimmig, II, Public Defender, and Christopher Desrochers, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, f or Appellee.

PER CURIAM.

Nicholas De nole Marsh appeals his judgment and sentences for one count

of felony battery and one count of battery on a licensed security officer. He argues that- 2

- his dual convictions for these two offenses violate the double jeopardy clause s of the

United States and Florida Constitutions, that the evidence was insuffic ient to sustain a

conviction for battery on a licensed security officer, and that the trial court erred in

denying his motion for judgment of acquittal on the count for battery on a licensed

security officer.

The State concedes both that the evidence was i nsufficient to sustain the

conviction for battery on a licensed security officer because the evidence did not

establish that the victim was wearing a uniform as described in section 784.07(2)(b),

Florida Statutes (2014), and that Mr. Marsh's resultant dual convictions violate double

jeopardy . We accept the State ' s concession as to both issues. Were we concerned

solely with the sufficiency of the evidence as to the uniform element of the charge for

battery on a licensed security officer, we would reve rse and remand with instructions to

convict Mr. Marsh of simple battery instead of battery on a licensed security officer. See

§ 924.34, Fla. Stat. (2016); Rodriguez v. State , 964 So. 2d 833, 838 (Fla. 2d DCA 2007)

(holding that although the evidence did establish the lesser included offense of simple

battery, the evidence "did not prove that there was an unlawful battery on a law

enforcement officer under section 784.07" and remanding with instructions for the trial

court to adjudicate the defendant guilt y of simple battery ) . Because convicting Mr.

Marsh of both felony battery and simple battery for the same act would vi olate double

jeopardy

— as the S tate correctly concedes

— we can affirm only the felony battery

conviction. See Harris v. State , 1 11 So. 3d 922 , 925 (Fla. 1st DCA 2013) (reversing a
conviction for simple battery because the defendant's felony battery and simple battery

convictions arose from the same acts and because felony battery "wholly subsumes- 3

- battery") ; see also § 775.021 (4) , Fla. Stat. (2014)

. Accordingly, we affirm Mr. Marsh ' s
judgment and sentence for felony battery, reverse his judgment and sentence for

battery on a licensed security officer, and remand the case to the trial court with

instructions to vacate the judgment and sentence for battery on a licensed security

officer.

Affirmed in part; reversed in part; remanded.

CASANUEVA, SALARIO, and BADALAMENTI, JJ., Concur.