Barrington v. State

Decision Date13 October 1976
Docket NumberNo. AA--226,AA--226
Citation338 So.2d 85
PartiesRobert Earl BARRINGTON, Sr., Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant seeks review of his conviction of the crime of sexual battery (F.S. 794.011(4)(a)) and his resulting sentence of life imprisonment. Our examination of the record reveals that the evidence was sufficient, if believed by the jury, (which apparently it was) to sustain the conviction. (See McKee v. State, Sup.Ct.Fla.1947, 159 Fla. 794, 33 So.2d 50; Truluck v. State, Sup.Ct.Fla.1959, 108 So.2d 748; Thomas v. State, Sup.Ct.Fla.1964, 167 So.2d 309 and Tibbs v. State, Sup.Ct.Fla.1976, 337 So.2d 788, opinion filed July 28, 1976. However, the state candidly agrees that the sentence imposed exceeds that permitted by law. (See F.S. 794.011(4)(e) and F.S. 775.082, Florida Statutes 1973). Accordingly, we affirm the conviction but reverse and remand for the purpose of the trial judge correcting the sentence. It shall not be necessary for appellant to be present at the time the sentence is corrected.

Affirmed in part and reversed in part.

BOYER, C.J., and RAWLS and McCORD, JJ., concur.

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1 cases
  • Mitchell v. State, 80-1613
    • United States
    • Court of Appeal of Florida (US)
    • 16 Diciembre 1981
    ...had a well founded fear of imminent violence, an essential element of criminal assault has not been proven. See Barrington v. State, 338 So.2d 85 (Fla. 1st DCA 1976); State v. Pinder, 375 So.2d 836 The only other point which requires discussion is whether the defendant can be convicted and ......

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