HINTON v. STATE (1998)

ON MOTION FOR REHEARING

We deny Appellant's motion for rehearing but withdraw our opinion of May 6, 1998, and substitute the following opinion:

We affirm an order denying Appellant's motion for post-conviction relief under rule 3.800(a).   Appellant was convicted of one count of attempted burglary with a battery.   He was sentenced as a habitual offender to 30 years imprisonment.   The date of his crime was October 27, 1990.   He claims that his sentence exceeds the statutory maximum for a third-degree felony.   However, Appellant was convicted of attempted burglary with a battery, a second-degree felony, and was sentenced as a habitual offender.   Since his crime occurred on October 27, 1990, the 1989 statutes apply to his sentence.

Section 810.02(2)(a), Florida Statutes (1989), provides that a burglary is a first-degree felony if, during the course of the crime, the defendant makes an assault or battery upon any person.   Pursuant to section 777.04(4)(b), Florida Statutes, an attempted first-degree felony is a second-degree felony.   The applicable habitual offender statute further provided for a maximum term of 30 years for second-degree felonies.  Fla. Stat. § 775.084(4)(a)2 (1989).

In Tillman v. State, 525 So.2d 862 (Fla.1988), the supreme court considered a departure sentence imposed under the 1985 statutes for attempted burglary of a conveyance with an assault or battery.   The court stated that absent the departure:

the statutory maximum of fifteen years ․ [would have been increased] to thirty years, the enhanced statutory maximum allowed under the habitual offender statute․

Id. at 863.   Appellant, like the defendant in Tillman, faced a maximum sentence as a habitual offender of 30 years and that is what he received.

PER CURIAM.

STONE, C.J., and DELL and FARMER, JJ., concur.