743 So. 2d 90 | Fla. Dist. Ct. App. | 1999
Dallas Hartline appeals Ms judgment and sentence.
First, Hartline contends that the reclassification of his sexual battery conviction from a second degree felony to a first degree felony was improper because the reclassification provision, section 794.023, applies only if a charge is brought pursuant to section 794 .011. Since he was charged and convicted pursuant to section 800.04(3), he argues, the court should not have reclassified the crime. Second, he contends that he was improperly designated a sexual predator under section 775.21, because the only basis for his being classified a sexual predator was the improperly enhanced sexual battery conviction. We agree and reverse for resentencing as to count four.
Hartline was convicted in count one of lewd and lascivious assault upon a child,
At sentencing, the trial court used count four as the primary offense, and, pursuant to section 794.023, reclassified the conviction from a felony of the second degree to a felony of the first degree. Hartline was then sentenced to 27.25 years in prison on count four, concurrent 15-year sentences on counts one, two, three and five, and ten year’s probation on count two consecutive to the prison terms. The trial court also declared Hartline a sexual predator based on his first-degree felony conviction of sexual battery on a child with multiple perpetrators.
Initially, we address whether Hartline preserved this issue for appeal. The state argues that Hartline did not make a contemporaneous objection at sentencing. Citing Maddox v. State, 708 So.2d 617 (Fla. 5th DCA), rev. granted, 718 So.2d 169 (Fla.1998), the state argues that Hartline waived the issue by failing to object or file a timely motion under Florida Rule of Criminal Procedure 3.800(b). We think the issue was preserved for appeal during the charge conference. While debating whether to give an instruction on the enhancement statute, which the court ultimately gave, Hartline’s attorney objected to the instruction arguing that it could only be given when sexual battery was charged under section 794.011.
The state argues that section 794.023
Section 800.04, Florida Statutes (1995), states in pertinent part:
800.04 Lewd, lascivious, or indecent assault or act upon or in presence of child.—A person who:
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(3) Commits an act defined as sexual battery under s. 794.011(l)(h) upon any child under the age of 16 years,
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without committing the crime of sexual battery, commits a felony of the second degree [e.s.]
In contrast, section 794.011 requires the state to prove lack of consent by the victim, an element which section 800.04(3) does not contain. Moreover, the language of section 800.04(3) differentiates the two statutes. Specifically, section 800.04(3) pertains only to the commission of an act defined as sexual battery under 794.011(l)(h), without the commission of the crime of sexual battery. The Florida Supreme Court wrote that the language
REVERSED and REMANDED with directions.
. § 800.04(1), Fla.Stat. (1995).
. § 800.04(3), Fla.Stat. (1995).
.§ 800.04(3), Fla.Stat.- (1995).
. § 800.03(3), Fla.Slat. (1995)
. 794.023 Sexual battery by multiple perpetrators; enhanced penalties.—
(1) The Legislature finds that an act of sexual battery, when committed by more than one person, presents a great danger to the public and is extremely offensive to civilized society. It is therefore the intent of the Legislature to provide enhanced penalties for acts of sexual battery committed by more than one person.
(2) The penally for a violation of s. 794.011 shall be increased as provided in this subsection if it is charged and proven by the prosecution that, during the same criminal transaction or episode, more than one person committed an act of sexual battery on the same victim.
(b) A felony of the first degree shall be punishable as if it were a life felony.