Rafael Alexander Gutierrez v. State of Florida

Rafael Alexander Gutierrez seeks review of the decision of the Fifth District Court of Appeal in Gutierrez v. State, 133 So.3d 1125 (Fla. 5th DCA 2014), on the ground that it expressly and directly conflicts with a decision of the Second District Court of Appeal in Brown v. State, 11 So.3d 428 *227(Fla. 2d DCA 2009), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the following reasons, we quash the decision of the Fifth District in Gutierrez and remand for a new trial.

BACKGROUND AND FACTS

Rafael Alexander Gutierrez was found guilty by a jury of sexual battery in…