Hawes v. State
| Decision Date | 08 July 1998 |
| Docket Number | No. 97-0470,97-0470 |
| Citation | 712 So.2d 834 |
| Parties | 23 Fla. L. Weekly D1616 Joseph HAWES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Douglas J. Glaid, Assistant Attorney General, Fort Lauderdale, for appellee.
The state concedes that appellant, a juvenile, cannot be convicted of attempted capital sexual battery, which requires the perpetrator to be over the age of eighteen. See § 794.011(2)(a), Fla. Stat. (1995). We therefore reverse appellant's conviction and remand with directions to enter a judgment of guilt for attempted sexual battery and to resentence appellant in accordance with the penalties provided for a second degree felony. See M.J.C. v. State, 681 So.2d 1203, 1203 (Fla. 5th DCA 1996).
If on resentencing the trial court intends to reduce appellant's sentence to less than twelve years imprisonment, in contravention of the plea bargain, the state should be given the option to vacate the judgment and sentence in their entirety and to take appellant to trial. See Cheney v. State, 640 So.2d 103, 105 (Fla. 4th DCA 1994) ().
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