Pelham v. State

District Court of Appeal of Florida

Pelham v. State

595 So. 2d 581, 1992 Fla. App. LEXIS 3325, 1992 WL 57543

CourtDistrict Court of Appeal of Florida

DecidedMarch 25, 1992

DocketNo. 90-01281

StatusPublished

Cited by1 cases

This text of 595 So. 2d 581 (Pelham v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pelham v. State, 595 So. 2d 581, 1992 Fla. App. LEXIS 3325, 1992 WL 57543 (Fla. Ct. App. 1992).

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Opinion

RYDER, Acting Chief Judge.

Jack Pelham seeks review of the judgment and sentence entered on a jury verdict finding him guilty of kidnapping, robbery with a deadly weapon, grand theft auto, sexual battery with a deadly weapon and sexual battery. Appellant’s convictions are affirmed.

However, appellant was sentenced as a habitual offender for the conviction of sexual battery with a deadly weapon which is a life felony. § 794.011(3), Fla.Stat. (1989). Because life felonies are not subject to habitual offender enhancement, Burdick v. State, 594 So.2d 267 (Fla.1992); Leaty v. State, 590 So.2d 512 (Fla. 2d DCA 1991); Lock v. State, 582 So.2d 819 (Fla. 2d DCA 1991), it was error to check the “habitual offender” box on the sentence form. Accordingly, the case is remanded to the trial court for correction of this scrivener’s error. See Power v. State, 568 So.2d 511 (Fla. 5th DCA 1990). Appellant’s sentence is otherwise affirmed.

Affirmed, but remanded.

CAMPBELL and ALTENBERND, JJ., concur.

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RYDER, Acting Chief Judge.

Jack Pelham seeks review of the judgment and sentence entered on a jury verdict finding him guilty of kidnapping, robbery with a deadly weapon, grand theft auto, sexual battery with a deadly weapon and sexual battery. Appellant’s convictions are affirmed.

However, appellant was sentenced as a habitual offender for the conviction of sexual battery with a deadly weapon which is a life felony. § 794.011(3), Fla.Stat. (1989). Because life felonies are not subject to habitual offender enhancement, Burdick v. State, 594 So.2d 267 (Fla.1992); Leaty v. State, 590 So.2d 512 (Fla. 2d DCA 1991); Lock v. State, 582 So.2d 819 (Fla. 2d DCA 1991), it was error to check the “habitual offender” box on the sentence form. Accordingly, the case is remanded to the trial court for correction of this scrivener’s error. See Power v. State, 568 So.2d 511 (Fla. 5th DCA 1990). Appellant’s sentence is otherwise affirmed.

Affirmed, but remanded.

CAMPBELL and ALTENBERND, JJ., concur.

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595 So. 2d 581, 1992 Fla. App. LEXIS 3325, 1992 WL 57543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pelham-v-state-fladistctapp-1992.

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