ROBERT ASHWOOD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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[*200] BLUE, Judge.
Robert Ashwood (Ashwood) appeals his judgments and sentences for false imprisonment, attempted sexual battery with a deadly weapon, and aggravated assault. We find merit only in his contention that he was improperly sentenced to life imprisonment for attempted sexual battery with a deadly weapon. Accordingly, we reverse that sentence and remand for resentencing.
The state concedes Ashwood was improperly sentenced. Pursuant to section 794.-011(3), Florida Statutes (1989), sexual battery with a deadly weapon is a life felony. Section 777.04(4)(b), Florida Statutes (1989), provides that a person convicted of an attempt to commit a life felony shall be guilty of and punished for a second degree felony. The trial court erred in sentencing Ashwood to life imprisonment for attempted sexual battery with a deadly weapon. Although we affirm the conviction and judgment on that charge, we reverse the imposition of the life sentence and remand for resentencing. In all other respects the judgments and sentences appealed are affirmed.
Affirmed in part, reversed in part and remanded.
HALL, A.C.J., and PARKER, J., concur.
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Harris v. State, 650 So. 2d 639 (Fla. 4th DCA 1995)…eclassify this second degree felony to a first degree felony. Defendant’s method of calculation would simply eliminate the use of the weapon as a factor; however, he has cited no authority to support his argument. His reliance on Ashwood, v. State, 616 So. 2d 199 (Fla.2d DCA 1993) is misplaced because in Ashwood, the crime was sexual battery with a deadly weapon. The use of the weapon was part of the crime. We cannot tell from the opinions on which the state relies whether the specific argument which the de…