JAMES EDWARD MCLAIN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a capital felony cannot be enhanced under the habitual offender statute, and thus the habitual offender designation for the capital felony sentence was improper.
The defendant was convicted of attempted sexual battery, sexual battery upon a child less than 12 (a capital felony), and lewd and lascivious conduct.…
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FRANK, Judge.
James McLain seeks reversal of his convictions and sentences. We affirm the convictions without comment, but we remand one sentence to correct an improper habitual offender designation.
The jury found McLain guilty of attempted sexual battery upon a child less than 12, a first degree felony, sexual battery upon a child less than 12, a capital felony, and lewd and lascivious conduct, a felony of the second degree. At the penalty phase, the trial court imposed consecutive sentences. For the attempted sexual battery, McLain received life in prison; for the capital sexual battery, he received life with a twenty-five year minimum mandatory term; and for the offense of lewd and lascivious conduct, he received a thirty year prison term, McLain was declared a habitual felon and each three written sentences reflected that determination.
McLain correctly states that the highest degree of felony contemplated by the habitual offender statute is a first degree felony punishable by life. See § 775.-084(4), Fla.Stat. (1989). A defendant convicted of a capital felony shall be confined to life 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 the capital felony the notation designating McLain a habitual offender. CAMPBELL, A.C.J., and BLUE, J., concur.
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Biles v. State, 700 So. 2d 166 (Fla. 4th DCA 1997)…se. The State concedes that the trial court erred when it sentenced appellant as an habitual offender in counts one through four for capital sexual battery upon a child. We agree and vacate his sentence as an habitual offender. See McLain v. State, 612 So. 2d 664 (Fla. 2d DCA 1993). Accordingly, we affirm appellant’s convictions on counts one through four and count six as charged in the information. We reverse appellant’s conviction on count five and remand for a new trial on this charge. As to counts one t…
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Parrimon v. State, 644 So. 2d 95 (Fla. 2d DCA 1994)…75F, the trial court sentenced Parrimon as a habitual violent felony offender for first degree murder. This was error because a capital felony is not subject to the enhancement provisions of section 775.084, Florida Statutes (1989). McLain v. State, 612 So. 2d 664 (Fla. 2d DCA 1993). Thus, we remand with directions to strike the notation in the sentence for first degree murder designating Parrimon as a habitual offender. We also must remand with directions to delete the three year mandatory minimum sentence…
Authorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- Mishoe v. State, 601 So. 2d 1284 (Fla. 5th DCA 1992)