BENNY LEE BLOODWORTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed conviction for attempted sexual battery and lewd and lascivious act but reversed the sentence for the latter offense because the combined incarceration and probation term exceeded the statutory fifteen-year maximum for a second-degree felony.
A sentence combining incarceration and probation that exceeds the statutory maximum period of incarceration for a second-degree felony violates sentencing law and must be reversed.
[1] A sentence for a second-degree felony that combines incarceration and probation in a manner exceeding the statutory maximum period of incarceration is reversible error.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of attempted sexual battery of a child and lewd and lascivious act in the presence of a nine-year-old child. The trial court s…
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PER CURIAM.
Appellant seeks review of his convictions of attempted sexual battery of a child and lewd and lascivious act in the presence of a child, and of the sentence imposed with regard to the conviction of lewd and lascivious act in the presence of a child. Specifically, appellant contends the trial court abused its discretion in determining that nine-year-old L.S. was competent to testify, and that the sentence imposed as to the conviction of lewd and lascivious act in the presence of a child exceeds the statutory maximum for the offense. We affirm the first issue without discussion, and reverse and remand for re-sentencing with respect to the second issue.
The offense of lewd and lascivious act in the presence of a child under the age of sixteen is a second degree felony, for which the maximum period of incarceration is fifteen years. See § 800.04(4), Pla.Stat. (1995). The trial court imposed a sentence of sixty-five months, to be followed by a ten-year period of probation. The total period of incarceration and probation exceeds the maximum permissible term of incarceration which may be imposed as punishment for the crime. See Kline v. State, 642 So. 2d 1146, 1147 (Fla. 1st DCA 1994).
Accordingly, the sentence imposed for lewd and lascivious act in the presence of a child is reversed and remanded with directions to impose a sentence which does not exceed the statutory maximum for a second degree felony.
JOANOS, WOLF and LAWRENCE, JJ., concur.