CHARLES HAYES, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Court reversed a 30-year sentence for attempted sexual battery with a deadly weapon because the sentence exceeded the 15-year statutory maximum for a second-degree felony attempt.
A sentence for attempted sexual battery with a deadly weapon cannot exceed 15 years, the statutory maximum for a second-degree felony attempt, even if departure from guidelines is warranted.
[1] An attempt to commit sexual battery with a deadly weapon constitutes a second-degree felony punishable by a maximum of 15 years imprisonment, not subject to deadly weapon…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceHayes was sentenced to 30 years for attempted sexual battery with a deadly weapon.…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Second Degree Felony cases and more on FLexlaw
ORFINGER, Judge.
This is an appeal from a departure sentence. We reverse, because even if we assume that departure from the guidelines was warranted, a matter not raised and not decided here, the thirty year sentence imposed for the crime of attempted sexual battery with a deadly weapon exceeded the statutory maximum penalty for the crime.
Sexual battery with a deadly weapon is a life felony. § 794.011(3), Fla. Stat. (1985). An attempt to commit a criminal offense, which if completed would be classified as a life felony, is designated a second degree felony, punishable by a term of imprisonment not to exceed 15 years. § 777.04(4)(b), Fla.Stat. (1985). The State concedes the correctness of this assertion. Neither can the penalty be enhanced under the provisions of section 775.087(1), because of the use of a deadly weapon, because that statute by its terms does not apply to a felony in which the use of the firearm is an essential element. State v. Brown, 476 So. 2d 660 (Fla.1985).
The sentence for Count II, attempted sexual battery with a deadly weapon, is vacated and the cause is remanded for re-sentencing on that count, using a score-sheet properly classifying the offense as a second degree felony.
Sentence VACATED in part and REMANDED.
COBB, C.J., and DAUKSCH, J., concur.