Miller v. State

820 So. 2d 1056, 2002 Fla. App. LEXIS 9683, 2002 WL 1466589

Opinion

FARMER, J.

We reject defendant’s Apprendi challenge to his 10-year sentence for lewd and lascivious battery.¹ Under the statutes the maximum sentence for this offense is 15 years.² Thus the addition of points for penetration did not increase the sentence beyond the prescribed maximum. In this circumstance, the points relate to a legitimate sentencing factor. We thus follow our decision in Gilson v. State, 795 So.2d 105 (Fla. 4th DCA 2001), involving the same issue under identical circumstances. In so doing we express no opinion as to the result that would obtain where sentencing points push the sentence beyond the statutory maximum.³

AFFIRMED.

HAZOURI, J, and DELL, JOHN W., Senior Judge, concur.

1 . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

2 . See §§ 800.04(4), 775.082(3)(c), Fla. Stat. (2001).

3 . See, e.g., § 921.001(5), Fla. Stat. (2001) (for person sentenced for offenses committed after July 1, 1997, if the recommended sentence under the guidelines exceeds the statutory maximum the recommended sentence shall be imposed).