FLOYD L. MISHOE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
Mishoe was convicted by a jury of capital sexual battery1 and battery.2 For the sexual battery, he was sentenced as an habitual violent felony offender to life imprisonment with a minimum mandatory 25 year term. For the battery, Mishoe received a concurrent 1 year term of incarceration.
Because the habitual violent offender statute, section 775.084(4), Florida Statutes (1989) does not apply to capital or life felonies, we strike that designation from his sentence. See Burdick v. State, 594 So. 2d 267 (Fla.1992); Power v. State, 568 So. 2d 511, 512 (Fla. 5th DCA 1990). In all other respects, we affirm the convictions and sentences.
AFFIRMED as modified.
GOSHORN, C.J., COBB and COWART, JJ., concur. . § 794.011(2), Fla.Stat. (1989).
. § 784.03, Fla.Stat. (1989).
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McLAIN v. State, 612 So. 2d 664 (Fla. 2d DCA 1993)…imprisonment with a minimum mandatory term of twenty five years. See § 775.082(1), Fla.Stat. (1989). Capital felonies are not subject to the enhancement provisions of section 775.084. See Burdick v. State, 594 So. 2d 267 (Fla.1992); Mishoe v. State, 601 So. 2d 1284 (Fla. 5th DCA 1992). Because McLain could not be habit-ualized for the capital sexual battery, the written sentence adjudging him a habitual offender is erroneous. Accordingly, we remand this matter with directions to strike from the sentence for…
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Rogers v. State, 627 So. 2d 1352 (Fla. 5th DCA 1993)…fender. See § 784.-03, Fla.Stat. (1991). This finding is contrary to this court’s rulings that the habitual violent felony offender statute does not apply to capital or life felonies. See Burdick v. State, 594 So. 2d 267 (Fla.1992); Mishoe v. State, 601 So. 2d 1284 (Fla. 5th DCA 1992); Power v. State, 568 So. 2d 511, 512 (Fla. 5th DCA 1990). The judgment is affirmed, but the sentence is corrected to delete the designation of habitual violent felony offender. AFFIRMED, as modified. HARRIS, C.J., and GRIFFIN…
Authorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- Power v. State, 568 So. 2d 511 (Fla. 5th DCA 1990)