WHITTAKER v. STATE (1999)

District Court of Appeal of Florida,Second District.

James A. WHITTAKER, Appellant, v. STATE of Florida, Appellee.

No. 98-02016.

Decided: June 02, 1999

Miriam L. Sumpter of Miriam L. Sumpter, P.A., Tampa, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Appellee.

James A. Whittaker appeals the final judgment and sentence entered after a jury found him guilty of grand theft of a firearm and simple trespass. We affirm the convictions; however, we reverse and remand for the trial court to correct the judgment and impose a new sentence.

Whittaker correctly argues that under Scott v. State, 718 So.2d 751, 751-52 (Fla.1998), it is improper to enhance the offense for use of a firearm when the felony convicted of was grand theft of a firearm. See also Fla. R.Crim. P. 3.702(d)(12). Whittaker did not commit any other felonies after he took the victim's gun. The jury convicted him of simple trespass, which is a first-degree misdemeanor. It was error for the trial court to assess an additional eighteen points on the sentencing guidelines scoresheet. We affirm Whittaker's convictions; however, we reverse and remand for correction of the sentencing guidelines scoresheet and for resentencing.

PER CURIAM.

PARKER, C.J., and PATTERSON and CASANUEVA, JJ., Concur.

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