Gifford v. State, 98-3768.
| Decision Date | 25 August 1999 |
| Docket Number | No. 98-3768.,98-3768. |
| Citation | 744 So.2d 1046 |
| Parties | Richard GIFFORD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard Gifford, Starke, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Robert R. Wheeler, Assistant Attorney General, West Palm Beach, for appellee.
The narrow issue we address in this case is whether the trial court erred in denying appellant's motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a).
In 1991, Gifford entered a plea of nolo contendere to one count of attempted sexual battery by multiple offenders and one count of kidnapping. He was sentenced to 15 years imprisonment on the attempted sexual battery, followed by 15 years of probation on the kidnapping charge.
Gifford contends that his 15 year sentence for attempted sexual battery is illegal. He claims that the state erroneously scored the primary offense on his sentencing guidelines scoresheet as a sexual battery, when in fact his plea was to attempted sexual battery. Sexual battery, he argues, is a second degree felony, while attempted sexual battery is only a third degree felony.
The trial court denied relief. The court concluded that although attempted sexual battery is a third degree felony, under section 794.023, Florida Statutes (1997), a sexual battery committed by multiple offenders warrants an enhanced penalty, thereby justifying the increase of Gifford's offense to a second degree felony. Since a second degree felony is punishable by up to 15 years imprisonment, the trial court concluded that Gifford's sentence is not illegal. The court also concluded that three other grounds asserted by Gifford in his motion were without merit; as to those grounds, we agree that Gifford's claims were without merit.
The lower court erred in concluding that the attempted sexual battery could be enhanced from a third degree felony to a second degree felony. Section 794.023 provides:
The statute refers to the crime of sexual battery, not attempted sexual battery. The statute makes no provision for enhancing third degree felonies, such as the attempted sexual battery in this case, to second degree felonies. Applying the rule that statutes defining criminal conduct are to be strictly construed, we hold that section 794.023 does not apply to the crime of attempted sexual battery. See § 775.021(1), Fla. Stat. (1997).
The fifth district reached a similar conclusion concerning section 794.023 in Velasquez v. State, 657 So.2d 1218 (Fla. 5th DCA 1995), holding that an attempted sexual battery could not be enhanced under that statute, even though there were multiple perpetrators involved:
[A] close reading of section 794.023 shows that it fails to address attempted sexual battery, and the enhancement provisions relate only to second degree felonies and first degree felonies. The crime for which Velasquez was charged and convicted is a third degree felony, and his crime was an attempt, not a battery. Thus, the enhancement statute does not, on its face, apply to this case. Although some might argue this was a mere legislative...
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