Newberry v. State

616 So. 2d 1093, 1993 WL 101886

Opinion

616 So.2d 1093 (1993)

Richard NEWBERRY, Appellant,
v.
STATE of Florida, Appellee.

No. 92-0711.

District Court of Appeal of Florida, Fourth District.

April 7, 1993. Motion for Rehearing or Certification Denied May 10, 1993.

Richard L. Jorandby, Public Defender, and Eric M. Cumfer, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We affirm appellant's convictions for sexual battery with force or injury, burglary with assault or battery and robbery. We reverse the trial court's imposition of the habitual offender statute on appellant's conviction of sexual battery with force or injury because the habitual offender statute does not apply to this life felony. See § 794.011(3), Fla. Stat. (1991); Lamont v. State, 610 So.2d 435 (Fla. 1992). We also reverse the imposition of the habitual offender statute on appellant's conviction of burglary with assault or battery. When the trial court orally pronounced sentence, it did not sentence appellant as a habitual offender on this offense. See McBee v. State, 581 So.2d 1009 (Fla. 4th DCA 1991). We otherwise affirm the sentences imposed on each of appellant's convictions in all respects. We remand this cause to the trial court with instructions to correct its judgment and sentence consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

DELL, WARNER and POLEN, JJ., concur.