Stamper v. State

District Court of Appeal of Florida

Stamper v. State

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

CourtDistrict Court of Appeal of Florida

DecidedAugust 4, 1988

DocketNo. 87-1618

StatusPublished

Cited by2 cases

This text of 528 So. 2d 1323 (Stamper 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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Stamper v. State, 528 So. 2d 1323, 13 Fla. L. Weekly 1839, 1988 Fla. App. LEXIS 3489, 1988 WL 79821 (Fla. Ct. App. 1988).

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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.

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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.

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528 So. 2d 1323, 13 Fla. L. Weekly 1839, 1988 Fla. App. LEXIS 3489, 1988 WL 79821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stamper-v-state-fladistctapp-1988.

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