RAYMOND RIVAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We affirm appellant’s conviction and sentence for capital sexual battery on a child and his conviction on two counts of indecent assault and one count of simple battery. However, we reverse and remand for resentencing on the two counts of indecent assault. The “primary offense” at conviction designated on the scoresheet was the capital sexual battery on a child. Because that crime is a capital offense, it is not subject to a guideline sentence and cannot be scored as the primary offense and a life felony on a guidelines scoresheet. Anderson v. State, 550 So. 2d 488 (Fla. 4th DCA 1989); Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988). Upon remand a new scoresheet should be prepared for sentencing on the indecent assault convictions.
Affirmed in part; reversed in part and remanded.
WALDEN, WARNER and POLEN, JJ., concur.
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Banaszak v. State, 579 So. 2d 867 (Fla. 2d DCA 1991)…apital felony under section 794.011(2), Florida Statutes (1989), it is not subject to a guidelines sentence and cannot be scored as the primary offense and a life felony on a guidelines scoresheet. See § 921.001(4), Fla.Stat. (1989); Rivas v. State, 554 So. 2d 636 (Fla. 4th DCA 1989), and cases cited therein; and Boatwright v. State, 512 So. 2d 955 (Fla. 1st DCA 1987). The trial court indicated sexual battery as the primary offense on Banaszak’s guidelines scoresheet and treated it as a life felony. The two…
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Bullard v. State, 650 So. 2d 631 (Fla. 4th DCA 1995)…tion.1 We do however, reverse and remand for resentencing, as the trial court used the wrong scoresheet. A category three (3) scoresheet should have been used, with attempted robbery with a firearm scored as the primary offense. See Rivas v. State, 554 So. 2d 636 (Fla. 4th DCA 1989) (offense of capital sexual battery on a child was not subject to guideline sentence and could not be scored as primary offense and life felony on guideline scoresheet). STEVENSON, J., concurs. STONE, J., concurs specially with…
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Bond v. State, 598 So. 2d 306 (Fla. 2d DCA 1992)…l sexual battery, the guidelines would not be available to him on that charge. The sentencing guidelines do not apply to capital felonies committed either before or after October 1, 1983. Section 921.001(4)(a), Fla. Stat. (1989); see Rivas v. State, 554 So. 2d 636 (Fla. 4th DCA 1989); Dailey v. State, 501 So. 2d 15 (Fla. 2d DCA 1986). Thus, his belief that he would have scored seven to nine years is erroneous. He would face life in prison with a minimum mandatory of twenty-five years on the capital offense. S…
Authorities Cited
- Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988)
- Anderson v. State, 550 So. 2d 488 (Fla. 4th DCA 1989)