DIEGO TAMBRIZ-RAMIREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2013-05-15
No. 4D11-4359
STEVENSON and CONNER, JJ., concur.
112 So. 3d 767 Florida District Court of Appeal, Fourth District (2013) Positive Treatment
Cited by 4 cases

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Synopsis

Diego Tambriz-Ramirez appealed his convictions for burglary with battery, aggravated assault, and attempted sexual battery with a deadly weapon, challenging his sentences and the trial court's handling of expert witness testimony. The appellate court affirmed the convictions but reversed and remanded the 30-year sentence for attempted sexual battery, finding it exceeded the statutory maximum and that the defendant did not qualify for enhanced sentencing under Florida's Dangerous Sexual Felony Offender Act.


Holding

The 30-year sentence for attempted sexual battery was illegal because the offense is a second-degree felony with a maximum penalty of 15 years. The defendant does not qualify for enhanced sentencing under the Dangerous Sexual Felony Offender Act because attempted sexual battery is not listed as a qualifying crime in that statute.


Headnotes

[1] A sentence exceeding the statutory maximum for a second-degree felony is illegal.

[2] A defendant convicted of attempted sexual battery with a deadly weapon cannot be sentenced under a dangerous sexual felony offender act that does not expressly include at…

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Key Quotes

“The trial court sentenced Mr. Tambriz-Ramirez to thirty years in prison. This was in excess of the amount allowed by statute and thus error.”

Establishes that the 30-year sentence for a second-degree felony exceeded the 15-year statutory maximum.

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Facts & Procedural History

Tambriz-Ramirez was convicted of one count of burglary with a battery while masked, one count of aggravated assault while masked, and one count of att…

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Opinion of the Court
DAMOORGIAN, J.

DAMOORGIAN, J.

Diego Tambriz-Ramirez appeals his judgment and sentence for one count of burglary with a battery while masked, one count of aggravated assault while masked, and one count of attempted sexual battery with a deadly weapon. We affirm in part and reverse in part.

Mr. Tambriz-Ramirez raises the following arguments on appeal: (1) the trial court erred by failing to declare a testifying handwriting expert as an expert witness; (2) his life sentence for his burglary with battery is excessive; and (3) his 30-year sentence for attempted sexual battery is illegal. We conclude that the first two arguments have no merit and decline to comment further. We do, however, hold that Mr. Tambriz-Ramirez’s sentence for attempted sexual battery is illegal, and remand for resentencing.

Attempted sexual battery with a deadly weapon is a second degree felony. § 777.04(4)(c), Fla. Stat. (2010). The maximum penalty for a second degree felony is fifteen years. § 775.082(3)(c), Fla. Stat. (2010). The trial court sentenced Mr. Tambriz-Ramirez to thirty years in prison. This was in excess of the amount allowed by statute and thus error.

The State concedes the trial court’s error, but urges us to direct the trial court to resentence Mr. Tambriz-Ramirez under the enhanced mandatory sentencing guidelines set forth in section 794.0115, Florida Statutes (2010), Florida’s Dangerous Sexu*768al Felony Offender Act (“the Act”). We hold that Mr. Tambriz-Ramirez does not qualify for mandatory enhanced sentencing under the Act because he was not convicted of one of the qualifying crimes enumerated in section 794.0115(2). In interpreting the Act, we are bound by its plain language and cannot add words that were not included by the Legislature. Exposito v. State, 891 So.2d 525, 528 (Fla.2004). Although sexual battery with a deadly weapon is listed as qualifying crime, the Act makes no mention of whether an attempt can also be a qualifying crime. The absence of any reference to “attempts” is significant, especially in light of the fact that the Legislature chose to expressly identify “attempts” in other sentencing enhancement statutes. See, e.g. §§ 775.084(1)(b)-(c), Fla. Stat. (2012) (including “attempts” in defining qualifying offenses for sentencing as a violent felony offender and third-time violent felony offender). Thus, we conclude that since the Act does not include any language referencing attempts, attempts of qualifying crimes are not qualifying crimes under the Act. See Walters v. State, 790 So.2d 483, 485 (Fla. 5th DCA 2001) (absence of “attempts” under list of qualifying crimes supported defendant’s arguments that a conviction for an attempt of a qualifying crime did not subject him to sentence heightening statute).

Accordingly, we reverse and remand with directions to designate the offense a second degree felony and to impose a sentence of not more than fifteen years.

Affirmed, in part; Reversed in part and Remanded for resentencing.

STEVENSON and CONNER, JJ., concur.


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Citator

Cited By

  • Tambriz-Ramirez v. State, 213 So. 3d 920 (Fla. 4th DCA 2017)
    …d of burglary with an assault and aggravated assault committed in the same episode. Background The following summary of the evidence is derived from appellant’s direct appeal, which was reversed in part for resentenc-ing. Tambriz-Ramirez v. State, 112 So. 3d 767 (Fla. 4th DCA 2013). Armed with a knife and using a shirt as a mask, appellant broke into the victim’s home at night and attempted to sexually batter her. The victim testified that during the attack, appellant put the knife to her face and neck. Th…
  • Felder v. State, 116 So. 3d 605 (Fla. 5th DCA 2013)
    …ive intent not to include “attempts” among the criminal convictions that would qualify for this very severe sentencing alternative. This was the conclusion recently reached by the Fourth District Court of Appeal in Tambriz-Ra- [*608] mirez v. State, 112 So. 3d 767 (Fla. 4th DCA 2013).1 The facts adduced during the sentencing hearing about Felder’s 1999 crime are chilling: THE COURT: [T]he defendant unlawfully and against her will forced [a young girl] ... into a[car] ... by pulling her by the hair and threa…

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