Wingate v. State

590 So. 2d 1108, 1991 Fla. App. LEXIS 12924, 1991 WL 275538

Opinion

RYDER, Acting Chief Judge.

Daniel Allen Wingate challenges his convictions and sentences for armed robbery with a deadly weapon, aggravated battery and falsely impersonating a police officer during the commission of a felony. He raises three points on appeal. We find merit in his third argument that the trial court erred in exceeding the maximum penalty of fifteen years for count II, aggravated battery, a second degree felony.

Our supreme court recently held that aggravated battery with the use of a deadly weapon, section 784.045(l)(b), is not subject to reclassification pursuant to section 775.087(1) because the use of a weapon is an essential element of the crime. Lareau v. State, 573 So.2d 813 (Fla.1991).¹ The combined terms of incarceration and probation cannot exceed the statutory maximum. State v. Lindsey, 560 So.2d 406 (Fla. 5th DCA 1990).

We affirm the appellant’s convictions, the sentences for armed robbery with a deadly weapon and falsely impersonating a police officer during the commission of a felony, and reverse and remand for resen-tencing for aggravated battery in accord with this opinion.

FRANK and HALL, JJ., concur.

1

. The trial court did not have the benefit of this decision at the time appellant was sentenced.