ERIC LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the statutory conditions for sexual battery offenses cannot be imposed on a defendant convicted of attempted sexual battery.
Eric Lee pleaded no contest to attempted sexual battery and was placed on community control with conditions enumerated in section 948.03(5)(a), Florid…
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PER CURIAM.
Eric Lee (Lee) pleaded no contest to attempted sexual battery, reserving the right to appeal the issue considered here. Adjudication of guilt was withheld and he was placed on community control for two years under conditions enumerated in section 948.03(5)(a), Florida Statutes (1999). This statutory section requires imposition of certain conditions when the offense committed is in violation of chapter 794, Florida Statutes (1997) (sexual battery), as well as other chapters not at issue here. Lee seeks review of his sentence imposing these conditions.
Lee argues that the conditions were illegally imposed since he was not convicted of sexual battery, an offense under chapter 794, but rather attempted sexual battery, an offense under chapter 777, Florida Statutes (1997). We agree and reverse.
This court earlier considered a similar issue in Zopf v. Singletary, 686 So. 2d 680 (Fla. 1st DCA 1996). We held in that case that the language of section 794.011(7), Florida Statutes (1993), making those convicted of sexual battery ineligible for gain-time, was not applicable to inmates convicted of attempted sexual battery. The rationale of Zopf is equally applicable to the instant case. Whether imposition of the conditions at issue are appropriate for those convicted of attempted sexual battery is a legislative matter when, as here, the statute at issue is free of ambiguity.
Accordingly, we reverse that portion of Lee’s sentence imposing conditions pursuant to section 948.03(5)(a) and remand to the trial court with instructions to strike the conditions at issue. Lee need not be present for this action.
REVERSED and REMANDED.
ERVIN, LAWRENCE and BROWNING, JJ., CONCUR.
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Wilcox v. State, 783 So. 2d 1150 (Fla. 1st DCA 2001)…opf v. Singletary, 686 So. 2d 680, 681 (Fla. 1st DCA 1996), attempted sexual battery is “a crime under section 794.011(2), Florida Statutes, as modified [*1151] by the ‘attempt’ statute, section 777.04, Florida Statutes.” To the extent Lee v. State, 766 So. 2d 374 (Fla. 1st DCA 2000), holds otherwise, we recede from Lee. We find no merit to the remaining constitutional challenges raised by Wilcox. AFFIRMED. ERVIN, BOOTH, MINER, ALLEN, WOLF, KAHN, WEBSTER, DAVIS, BENTON, VAN NORTWICK, PADOVANO, BROWNING…
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Donovan v. State, 821 So. 2d 1099 (Fla. 5th DCA 2002)…orated what K.B. had told her. As such, it was properly admitted. Donovan also appeals his sentence, arguing that the trial court erred in imposing sex offender conditions on his probation. To support this claim the defendant cites to Lee v. State, 766 So. 2d 374 (Fla. 1st DCA 2000) where the First District held that it was impermissible to impose conditions of probation authorized for persons convicted of sexual battery on persons convicted of “attempted” sexual battery. We reject this argument because, in…
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State v. Thurman, 791 So. 2d 1228 (Fla. 5th DCA 2001)…fender conditions specified in section 948.03(5)1, Florida Statutes (1999), apply only to defendants convicted of sex offenses, and he was convicted only of attempt. The trial court agreed and granted the motion, basing its decision on Lee v. State, 766 So. 2d 374 (Fla. 1st DCA 2000). The State appeals and we reverse. The State urges that Thurman cannot complain that the terms of probation were improper because he did not appeal them, and purports to complain only after violating the probation. Also, Thurman…
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- Zopf v. Singletary, 686 So. 2d 680 (Fla. 1st DCA 1996)