WILBERT LEE HOLLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed most of Holland's resentencing but reversed the sentence for attempted sexual battery with a deadly weapon because the trial court improperly scored it as a first-degree felony and imposed a 20-year sentence exceeding the 15-year statutory maximum for second-degree felonies.
A trial court errs when it scores attempted sexual battery with a deadly weapon as a first-degree felony and imposes a sentence exceeding the 15-year statutory maximum for second-degree felonies.
[1] Attempted sexual battery with a deadly weapon is a second-degree felony under section 794.011(3) and section 777.04(4)(b), Florida Statutes, with a maximum penalty of 15…
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Join FLexlaw to unlock all legal intelligenceHolland was resentenced following a prior 3.800(a) appeal in which he challenged his original sentence as exceeding the statutory maximum. The trial c…
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PER CURIAM.
Pursuant to Florida Rule of Criminal Procedure 3.800(a), Wilbert Lee Holland seeks review of his resentencing. In a prior 3.800(a) appeal, Holland complained that the trial court sentenced him in excess of the statutory maximum. This court granted relief and remanded the case to the trial court to consider Holland’s claim. Holland v. State, 672 So. 2d 566 (Fla. 5th DCA), rev. denied, 678 So. 2d 388 (Fla. 4th DCA 1996). In this appeal, Holland argues that the trial court again erred in summarily denying his request for relief. We affirm the trial court’s resentencing order except as to the sentence imposed for attempted sexual battery with a deadly weapon, a violation of section 794.011(3), Florida Statutes (1991).
Attempted sexual battery with a deadly weapon is a second degree felony. § 777.04(4)(b), Fla. Stat. (1991). The trial court scored it as a first degree felony punishable by life imprisonment and sentenced Holland to 20 years imprisonment followed by 6 years probation. This was error. The maximum penalty for a second degree felony is 15 years. We reverse and remand with directions to designate the offense a second degree felony and to impose a sentence within the statutory maximum.
AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.
COBB, THOMPSON and ANTOON, JJ., concur.
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Citator
Cited By
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Kendrick v. State, 817 So. 2d 951 (Fla. 2d DCA 2002)…s also imposed consecutively on each count. However, the written judgment and sentence erroneously indicates that the attempted sexual battery with a deadly weapon is a first-degree felony when it is in fact a second-degree felony. Holland v. State, 681 So. 2d 308 (Fla. 5th DCA 1996). The maximum sentence that Mr. Kendrick can receive as a habitual violent felony offender for a second-degree felony is thirty years’ imprisonment with a ten-year minimum mandatory. § 775.084(4)(b)(2), Fla. Stat. (1993). Mr. Kend…
Authorities Cited
- Holland v. State, 672 So. 2d 566 (Fla. 5th DCA 1996)
- Mendez v. State, 678 So. 2d 388 (Fla. 4th DCA 1996)