Vance v. State

565 So. 2d 915, 1990 Fla. App. LEXIS 6480, 1990 WL 125069

Opinion

PER CURIAM.

We reject appellant’s constitutional attacks on the authority of Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990); and Osborne v. Ohio, 495 U.S. -, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).

We agree with appellant that he was improperly sentenced under a category 2 scoresheet rather than a category 9 score-sheet. Category 2 covers only sexual offenses prosecuted under chapters 794 and 800 and section 826.04, Florida Statutes. Those statutes are not involved herein. See Robertson v. State, 559 So.2d 352 (Fla. 1st DCA 1990) and Hutcheson v. State, 501 So.2d 190 (Fla. 5th DCA 1987).

Accordingly, we affirm appellant’s conviction but remand with directions for re-sentencing consistent herewith.

ANSTEAD and STONE, JJ., and FRANK, RICHARD H., Associate Judge, concur.