Stamper v. State

528 So. 2d 1323, 13 Fla. L. Weekly 1839, 1988 Fla. App. LEXIS 3489, 1988 WL 79821

Opinions

PER CURIAM.

Stamper appeals his convictions and sentences for three counts of lewd, lascivious or indecent assault upon or in the presence of a child.¹ There were three separately described and charged acts proved at trial which support Stamper’s three convictions. Therefore, there is no double jeopardy prohibition against his three convictions and sentences. For all three crimes we affirm the convictions.

The guidelines scoresheet totalled 266 points, indicating a recommended sentencing range of 5 to 7 years. Stamper was sentenced on each count (concurrently) to 7 years in prison, followed by 10 years on probation.² However, the statutory maximum sentence for these offenses, which are second degree felonies under § 775.082(3)(c), is 15 years. The combined total of prison time plus probation cannot exceed the statutory maximum provided for the offense. See McDowell v. State, 491 So.2d 594 (Fla. 5th DCA 1986), affirmed in part, quashed in part, 509 So.2d 927 (Fla.1987); see also Fla.R.Crim.P. 3.701(d)(10). Accordingly, we vacate the sentences and remand for resentencing. See Hamilton v. State, 527 So.2d 892 (Fla. 5th DCA 1988).

Convictions AFFIRMED, sentences VACATED, REMANDED.

SHARP, C.J., and DAUKSCH, J., concur. COWART, J., dissents with opinion.

1 . § 800.04(1), Fla. Stat. (1987).

2 . Fla.R.Crim.P. 3.701.d.l2.