Jennings v. State

528 So. 2d 1289, 13 Fla. L. Weekly 1781, 1988 Fla. App. LEXIS 3401, 1988 WL 76417

Opinion

DANIEL, Judge.

The defendant, David Jennings, appeals his convictions and sentences for two counts of sexual battery (counts 1 and 2) in violation of section 800.04(2), Florida Statutes (1985) and attempted sexual battery (count 3) in violation of sections 800.04(2) and 777.04, Florida Statutes (1985). The defendant’s recommended guidelines sentence was seven to nine years incarceration. The defendant was sentenced to concurrent split sentences of fifteen years on the sexual batteries, with six years suspended after serving nine years in prison, and five years imprisonment on the attempted sexual battery, to be served concurrently to the other sentences.

On appeal, the defendant argues that his sentences for the sexual batteries were improper because if he violates his probation, he will be subject to fifteen years incarceration, thereby constituting departure sentences. This argument is without merit. See McKee v. State, 528 So.2d 417 (Fla. 5th DCA 1988).

The defendant also argues that on the written judgment, the trial court incorrectly designated the sexual batteries as first-degree felonies when they are second degree felonies and the attempted sexual battery as a second degree felony when it is a third degree felony. The defendant is correct. See sections 800.04(2) and 777.-04(4)(c). Accordingly, the case is remanded for correction of the judgment.¹

AFFIRMED IN PART AND REMANDED.

DAUKSCH and ORFINGER, JJ., concur.

1 . The offenses were correctly designated on the defendant's sentencing guideline scoresheet.