Opinion

Banaszak v. State

  • 579 So. 2d 867
  • 1991 Fla. App. LEXIS 4744
  • 1991 WL 85540
Court
District Court of Appeal of Florida
Filed
May 22, 1991
Status
Published
Author
Hall
On the bench
Hall, Lehan, Scheb
Cited by
10 cases
Authority
More cited than 70.2%

The opinion

HALL, Judge.

Banaszak challenges his conviction for sexual battery of a child under twelve. He presents several issues for review; however, we find merit only in the issue relating to the improper preparation of his guidelines scoresheet.

*868 Because sexual battery of a child is a capital felony under section 794.011(2), Florida Statutes (1989), it is not subject to a guidelines sentence and cannot be scored as the primary offense and a life felony on a guidelines scoresheet. See § 921.001(4), Fla.Stat. (1989); Rivas v. State, 554 So.2d 636 (Fla. 4th DCA 1989), and cases cited therein; and Boatwright v. State, 512 So.2d 955 (Fla. 1st DCA 1987).

The trial court indicated sexual battery as the primary offense on Banaszak’s guidelines scoresheet and treated it as a life felony. The two convictions for lewd and lascivious acts were thus scored as additional offenses. Since that was error under the authority cited above, the case should be remanded for preparation of a new scoresheet and resentencing on the lewd and lascivious convictions.

Accordingly, we remand this case for corrections consistent with this opinion, but affirm Banaszak’s convictions in all other respects.

SCHEB, A.C.J., and LEHAN, J., concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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