Ashley v. State
| Decision Date | 01 May 1979 |
| Docket Number | No. 78-1542,78-1542 |
| Citation | 370 So.2d 1191 |
| Parties | Jimmy Lee ASHLEY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Edward J. O'Donnell and John Lipinski, Special Asst. Public Defenders, for appellant.
Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
Before PEARSON, HENDRY and BARKDULL, JJ.
The defendant was charged with (1) involuntary sexual battery, (2) burglary, (3) robbery, and (4) unlawful possession of a firearm while engaged in a criminal offense. After a jury trial, the defendant was found guilty of each of the charges and was sentenced as follows: Count 1 (involuntary sexual battery), life imprisonment, with the provision that he be "required to serve no less than TWENTY-FIVE (25) CALENDAR YEARS before becoming eligible for Parole;" Count 2 (burglary), life imprisonment with the provision that he be "required to serve no less than TWENTY-FIVE (25) CALENDAR YEARS before becoming eligible for parole;" Count 3 (robbery), life imprisonment with the provision that he be "required to serve no less than TWENTY-FIVE (25) CALENDAR YEARS before becoming eligible for Parole;" and Count 4 (unlawful possession of a firearm while engaged in a criminal offense), fifteen years imprisonment with the provision that he not be eligible for parole until he has "served THREE (3) CALENDAR YEARS, pursuant to Section 775.087(2) of the Florida Statutes."
The first two points raised on appeal are directed to the sentences imposed. With regard to Counts 1, 2 and 3, it is urged that Section 775.082(1), Florida Statutes (1977), provides for a term of life imprisonment with the requirement that the defendant serve twenty-five years before becoming eligible for parole when the defendant is convicted of a capital felony. In the present case, the defendant's conviction for involuntary sexual battery, burglary and robbery could have been punished by a maximum sentence of life imprisonment, but there is no provision for a life felony to carry with it the requirement of serving twenty-five years before becoming eligible for parole. The State concedes error in the sentencing of Counts 1, 2 and 3 and suggests that the twenty-five year maximum sentence requirements imposed under these are excessive only to the extent that they exceed the statutory three-year provision under Section 775.087(2), Florida Statutes (1977). This court is not inclined to revise these sentences inasmuch as our prerogative on appeal is to determine only the legality of the sentences. See La Barbera v. State, 63 So.2d 654 (Fla.1953). We will, therefore, reverse the sentences imposed under these counts and remand the cause to the trial court for resentencing according to the provisions of the statute.
The second point on appeal urges that the three-year mandatory provision of the sentence on Count 4 (unlawful possession of a firearm while engaged in a criminal offense) is not authorized because the crime involved is not one of those for which a minimum three-year sentence is established by Section 775.087(2), Florida Stat utes (1977). The State argues that because the defendant was found guilty of sexual battery which is one of the charges upon which he could have been given a three-year mandatory sentence, therefore, the imposition of the three-year mandatory sentence on Count 4 was harmless. We cannot agree, and inasmuch as the cause will be remanded for resentencing under Counts 1, 2 and 3, we hereby strike the unauthorized portion of the sentence on Count 4, that is, the provision that the defendant "not be eligible for parole until you (the defendant) have served THREE (3) CALENDAR YEARS, pursuant to Section 775.087(2) of the Florida Statutes."
The third point on appeal challenges the sufficiency of the evidence presented to prove sexual battery. The defendant urges that the evidence does not show "penetration" or "union" as provided by the statute. Our examination of the evidence in the light of this point convinces us that there was sufficient evidence to prove "penetration." See Williams v. State, 53 Fla. 84, 43 So. 431 (1907). Also, it is clear that there was "union" of the sexual organs as required by the statute. See § 794.011, Fla.Stat. (1977).
The fourth point on appeal urges reversible error because of the...
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