VERNON REID, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vernon Reid appeals his sentences for burglary with assault and attempted sexual battery with force. The court found two sentencing errors: the 30-year sentence on the attempted sexual battery charge exceeded the legal maximum of 15 years for a second-degree felony, and the trial court improperly retained jurisdiction over half of the 50-year burglary sentence based on a law that became effective after the offense date.
The 30-year sentence is excessive and exceeds the legal maximum of 15 years for a second-degree felony. The trial court improperly retained jurisdiction over one-half of the burglary sentence because the 1982 amendment allowing such retention became effective on April 20, 1982, three days after the offense, making its application an unconstitutional ex post facto law. The court must resentence defendant on remand.
[1] An attempt to commit a life felony is classified and punished as a second degree felony.
[2] The maximum sentence for a second degree felony is 15 years imprisonment.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 777.04(4)(b) provides that an attempt to commit a life felony is classified and punished as a second degree felony. Under section 775.082(3)(c) the maximum sentence for a second degree felony is 15 years imprisonment.”
Establishes the legal maximum sentence for attempted sexual battery with force is 15 years, not 30 years as imposed by the trial court.
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Join FLexlaw to unlock all legal intelligenceReid was convicted of burglary with assault and attempted sexual battery with force likely to cause serious personal injury. The trial court sentenced…
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LEHAN, Judge.
Defendant appeals the sentences imposed upon him by the trial court. For a conviction of burglary with assault, the trial court sentenced defendant to 50 years imprisonment and retained jurisdiction for 25 years. For the conviction of attempted sexual battery with force likely to cause serious personal injury, the court sentenced defendant to 30 years imprisonment and retained jurisdiction for ten years. The sentences are to run concurrently.
Defendant’s first point on appeal is that the 30 year sentence on the attempted sexual battery charge is in excess of the legal maximum sentence. We agree. Defendant was convicted of attempted sexual battery with force likely to cause serious personal injury. Section 794.011(3), Florida Statutes (1981), provides that a person who uses physical force likely to cause serious personal injury while committing a sexual battery is guilty of a life felony. Section 777.04(4)(b) provides that an attempt to commit a life felony is classified and punished as a second degree felony. Under section 775.082(3)(c) the maximum sentence for a second degree felony is 15 years imprisonment. Thus, the sentence of 30 years for defendant’s conviction of attempted sexual battery is in excess of the legal maximum sentence. On remand, defendant should be resentenced to no more than 15 years imprisonment.
As his second point on appeal, defendant contends that the trial court improperly retained jurisdiction over one-half of the 50 year sentence for the conviction of burglary with assault. We agree. The 1982 amendment to section 947.16(3), Florida Statutes, allows a court to retain jurisdiction for one-half of a sentence. However, the effective date of that amendment was April 20, 1982, and the date of the offense in this case was April 17, 1982. Retention of jurisdiction for one-half of defendant’s sentence would be an ex post facto application of the 1982 amendment; the trial court should resentence defendant and retain jurisdiction over not more than one-third of the total consecutive sentences imposed. Wicker v. State, 438 So. 2d 398 (Fla. 2d DCA, 1983).
REVERSED AND REMANDED.
BOARDMAN, A.C.J., and SCHEB, J., concur.
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Citator
Cited By
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Mills v. State, 462 So. 2d 1075 (Fla. 1985)…riod of retention alone does not constitute an ex post facto law in this case because Mills was convicted and sentenced after the effective date of the statute increasing the retention period.* We disapprove any conflicting holding in Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983). The trial court found five aggravating circumstances applicable—committed by person under sentence of imprisonment, during a kidnapping, for pecuniary gain, in a cold, calculated, and premeditated manner, and heinous, atrocious,…
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Neal v. State, 451 So. 2d 1058 (Fla. 5th DCA 1984)…e-third, which was the law in effect at the [*1061] time of the offense. To allow retention up to one-half would be an ex post facto application of the 1982 amendment. See: Hayes v. State, 448 So. 2d 84 (Fla. 2d DCA 1984) [9 FLW 846]; Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983).…
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Buford Springfield v. State, 443 So. 2d 484 (Fla. 2d DCA 1984)…se the record before us affirmatively shows that he did not raise this issue before the trial judge. Thus, he finds himself in a different position than, for example, the appellants in Williams v. State, 414 So. 2d 509 (Fla.1982), and Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983), who did initially and properly bring the error to the attention of the trial court for its timely consideration and correction. Ex post facto application of the retention statute is not fundamental error and objection must be mad…
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- Wicker v. State, 438 So. 2d 398 (Fla. 2d DCA 1983)