Barrington v. State

District Court of Appeal of Florida

Barrington v. State

338 So. 2d 85, 1976 Fla. App. LEXIS 15586

District Court of Appeal of Florida·Decided October 13, 1976·No. No. AA-226·Published·Cited by 1 cases

Opinion

PER CURIAM.

Appellant seeks review of his conviction of the crime of sexual battery (F.S. 794.011(4)(a)) and his resulting sentence of life imprisonment. Oúr examination of the record reveals that the evidence was sufficient, if believed by the jury, (which apparently it was) to sustain the conviction. (See McKee v. State, Sup.Ct.Fla.1947, 159 Fla. 794, 33 So.2d 50; Truluck v. State, Sup.Ct. Fla.1959, 108 So.2d 748; Thomas v. State, Sup.Ct.Fla.1964, 167 So.2d 309 and Tibbs v. State, Sup.Ct.Fla.1976, 337 So.2d 788, opinion filed July 28, 1976. However, the state candidly agrees that the sentence imposed exceeds that permitted by law. (See F.S. 794.011(4)(e) and F.S. 775.082, Florida Statutes 1973). Accordingly, we affirm the conviction but reverse and remand for the purpose of the trial judge correcting the sentence. It shall not be necessary for appellant to be present at the time the sentence is corrected.

Affirmed in part and reversed in part.

BOYER, C. J., and RAWLS and McCORD, JJ., concur.

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PER CURIAM.

Appellant seeks review of his conviction of the crime of sexual battery (F.S. 794.011(4)(a)) and his resulting sentence of life imprisonment. Oúr examination of the record reveals that the evidence was sufficient, if believed by the jury, (which apparently it was) to sustain the conviction. (See McKee v. State, Sup.Ct.Fla.1947, 159 Fla. 794, 33 So.2d 50; Truluck v. State, Sup.Ct. Fla.1959, 108 So.2d 748; Thomas v. State, Sup.Ct.Fla.1964, 167 So.2d 309 and Tibbs v. State, Sup.Ct.Fla.1976, 337 So.2d 788, opinion filed July 28, 1976. However, the state candidly agrees that the sentence imposed exceeds that permitted by law. (See F.S. 794.011(4)(e) and F.S. 775.082, Florida Statutes 1973). Accordingly, we affirm the conviction but reverse and remand for the purpose of the trial judge correcting the sentence. It shall not be necessary for appellant to be present at the time the sentence is corrected.

Affirmed in part and reversed in part.

BOYER, C. J., and RAWLS and McCORD, JJ., concur.

Barrington v. State, 338 So. 2d 85, 1976 Fla. App. LEXIS 15586 (Fla. Ct. App. 1976).

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