LUIS HERNANDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Luis Hernandez was convicted of sexual battery on a child under twelve and three counts of lewd or lascivious molestation. The Fourth District Court of Appeal reversed and remanded for resentencing on the molestation counts because the trial court imposed an illegal sentence by imposing both a life sentence and a mandatory 25-year minimum, when the statute permitted only one or the other.
The trial court imposed an illegal sentence for each count of lewd or lascivious molestation. Under Florida Statutes § 775.082(3)(a)4.a., the sentencing court must impose either a life sentence OR a split sentence of not less than 25 years followed by community control or probation for the remainder of the person's natural life, not both.
[1] A sentence imposing both a life sentence and a minimum mandatory term of twenty-five years for lewd or lascivious molestation of a child under twelve is illegal.
[2] A life felony conviction for lewd or lascivious molestation of a child under twelve is punishable by either a life sentence or a split sentence of not less than 25 years…
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Join FLexlaw to unlock all legal intelligence“Lewd or lascivious molestation of a child under twelve is a life felony, punishable as provided in section 775.082(3)(a)4., Florida Statutes.”
Establishes the statutory framework governing sentencing for the offense at issue
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Join FLexlaw to unlock all legal intelligenceHernandez was convicted by jury of sexual battery on a child under twelve and three counts of lewd or lascivious molestation. The trial court sentence…
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Luis Hernandez appeals his judgment and sentence for one count of sexual battery on a child under twelve and three counts of lewd or lascivious molestation. He raises multiple issues on appeal.1 We *131find merit in Hernandez’s argument, that the trial court imposed an illegal sentence for each count of lewd or lascivious molestation. Thus, we reverse and remand for resentencing on counts III, IV, and V. We affirm Hernandez’s judgment and sentence in all other respects.
The jury in this case found Hernandez guilty of sexual battery on a child under twelve and three counts of lewd or lascivious molestation. The trial court sentenced Hernandez to life in prison for the sexual battery. The trial court also imposed concurrent life sentences with a minimum mandatory sentence of twenty-five years for each count of lewd or lascivious molestation. On appeal, Hernandez argues, and the State concedes, that his sentence for each count of lewd or lascivious molestation is illegal. We agree.
We review Hernandez’s claim that the trial court imposed an illegal sentence de novo. See Claycomb v. State, 142 So.3d 916, 917 (Fla. 4th DCA 2014) (citing State v. Valera, 75 So.3d 330, 331-32 (Fla. 4th DCA 2011)).
Lewd or lascivious molestation of a child under twelve is a life felony, punishable as provided in section 775.082(3)(a)4., Florida Statutes. § 800.04(5)(b), Fla. Stat. (2008). Section 775.082(3)(a)4.a. permits the sentencing court to impose either a life sentence or a split sentence “that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life.” § 775.082(3)(a)4.a.(II), Fla. Stat.; see also Rochester v. State, 140 So.3d 973, 975 (Fla.2014) (defendant convicted of lewd or lascivious molestation of a child under twelve can be sentenced to “life imprisonment or a sentence of not less than twenty-five years followed by community control or probation for the rest of the offender’s life”). Instead of imposing one of the permissible sentences under the statute, the trial court imposed both. This was error. Accordingly, we reverse Hernandez’s sentence on counts III, IV, and V and remand for resentencing.
Affirmed in part; Reversed in part and Remanded.
GROSS and MAY, JJ., concur.
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Citator
Cited By
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Patrice Kerr v. State, 182 So. 3d 673 (Fla. 5th DCA 2015)…inder of .the person’s natural life, as provided in s. 948.012(4).” § 775.082(3)(a)4.,. Fla. Stat. Although the trial court had discretion to sentence Appellant to life, it could not also impose the 25-year minimum mandatory. See Hernandez v. State, 162 So. 3d 130, 131 (Fla. 4th DCA 2014) (“Instead of imposing one of,the permissible sentences,under the statute, the trial court imposed both. This was error.”). Therefore, we reverse and remand to correct the sentence, affirming Appellant’s judgment and,sentence…
Authorities Cited
- State v. Valera, 75 So. 3d 330 (Fla. 4th DCA 2011)
- Kemar Rochester v. State, 140 So. 3d 973 (Fla. 2014)
- Claycomb v. State, 142 So. 3d 916 (Fla. 4th DCA 2014)