Billy Joe PALMER, Appellant, v. STATE of Florida, Appellee, 838 So. 2d 579

PER CURIAM. Appellant seeks review of his conviction for a lewd and lascivious act upon a child in violation of

section 800.04, Florida Statutes (1997). The information alleges two alternative theories regarding the appellant’s actions, one of which constitutes the crime of sexual battery. The general verdict of guilt entered by the jury does not differentiate between the two theories. This court has previously held, “one cannot be convicted of a lewd and lascivious act upon a child under 12 years of age for conduct that ... constitutes the crime of sexual battery .... ” Jozens v. State, 649 So.2d 322, 323 (Fla. 1st DCA 1995); see also Beck v. State, 732 So.2d 427 (Fla. 1st DCA 1999).

The majority’s construction of the statute in Jozens is, in our view, questionable, and moreover, appears to contravene the legislative intent as construed by State v. Hightower, 509 So.2d 1078 (Fla.1987). Nevertheless, because the holding in Jozens remains intact, we are constrained to follow that case. The Legislature has now extensively amended

section 800.04, and it does not appear that the result this court reached in Jozens could be repeated. See Ch. 99-201, § 6, Laws of Fla. Because the defendant in this case may have been convicted on a theory that is incorrect as a matter of law, we must reverse and remand for a new trial. KAHN and PADOVANO, JJ., concur. POLSTON, J., dissents with opinion.