Rivera v. State

549 So. 2d 1042, 14 Fla. L. Weekly 1954, 1989 Fla. App. LEXIS 4651, 1989 WL 95292

Opinion

PATTERSON, Judge.

Of the four issues presented by the appellant, only one merits discussion. Luis Rivera was charged with and convicted of capital sexual battery and kidnapping. The information charges Rivera with kidnapping under section 787.01(l)(a)2, Florida Statutes (1985), a first degree felony. This section is recited in the judgment as well. However, Rivera’s guidelines scoresheet shows the conviction as a life felony.

The child involved in this case was only eleven. Section 787.01(3)(a)2, Florida Statutes (1985), provides that a person who kidnaps a child under the age of 13 with intent to commit sexual battery has committed a life felony. Although Rivera could have been charged with a life felony under this section, he was not. It was error to calculate his guidelines score as if he were.

Reversed and remanded for resentenc-ing.

DANAHY, A.C.J., and FRANK, J., concur.