LEYVA v. STATE (2006)

On Motion for Rehearing and Motion to Withdraw Mandate

Appellant, Fidel Leyva, has filed a motion for rehearing and a motion to withdraw this court's mandate issued on April 17, 2006.   We deny Leyva's motion for rehearing, but withdraw our previously entered mandate to make the following correction to the previously issued opinion.

In our opinion issued in Leyva v. State, we affirmed Leyva's conviction for attempted sexual battery, and his sentence of twenty years in prison.  925 So.2d 393 (Fla. 4th DCA 2006).   We reversed Leyva's conviction for lewd and lascivious conduct and his accompanying fifteen-year sentence.  Id. Leyva's motion for rehearing argues that, based on this court's reversal of his lewd and lascivious conviction, his total sentencing points are lower, and that the record does not conclusively show that the trial court would have imposed the same sentence using the corrected scoresheet.   We find merit in Leyva's assertion, and remand to the trial court to allow it to consider re-sentencing Leyva for attempted sexual battery using a corrected scoresheet.   See Jones v. State, 901 So.2d 255 (Fla. 4th DCA 2005).

POLEN, J.

SHAHOOD and TAYLOR, JJ., concur.