Wilcox v. State

585 So. 2d 1136, 1991 Fla. App. LEXIS 9555, 1991 WL 181469

Opinion

CONFESSION OF ERROR

PER CURIAM.

Appellant, Darrell Wilcox, was convicted of trespass, battery on a law enforcement officer, and resisting an officer with violence. Appellant was sentenced to five and one-half years for the battery on a law enforcement officer. We reverse and remand.

Appellant contends, and the State concedes, that it was fundamental error to sentence appellant to five and one-half years for battery on a law enforcement officer. We agree.

Battery on a law enforcement officer is a third degree felony punishable by a maximum of five years in prison. Sections 784.-07, 775.082, Fla.Stat. (1989). “It is undis-putable that an error in sentencing that causes a defendant to be incarcerated or restrained for a greater length of time than the law permits is fundamental.” Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981).

Accordingly, we reverse and remand for resentencing.