HORN v. STATE (2000)

Robert Wayne Horn was convicted of sexual battery on a child under twelve and committing a lewd act on a child.   His attorney filed his brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).   We have reviewed the record and have found sentencing errors.

The sentencing guidelines scoresheet correctly lists the sexual battery on a child under twelve offense as a level nine offense.   However, it incorrectly scores the offense at 116 points, instead of 91 points.   The corrected scoresheet's recommended range is 98.7 to 164.5 months in prison.   Horn was sentenced to 180 months in prison.   Therefore, we reverse Horn's sentences and remand this case for resentencing pursuant to a corrected guidelines scoresheet.

 On remand, it should be noted that the combined prison and probationary terms for the offenses may not exceed their statutory maximum.   See Fuentes v. State, 711 So.2d 175 (Fla. 2d DCA 1998).   Horn was sentenced to 15 years in prison followed by 25 years of probation for the offense of committing a lewd act on a child, which is a second-degree felony.   This sentence exceeds the statutory maximum for a second-degree felony, which is 15 years.   See Padilla v. State, 750 So.2d 671 (Fla. 2d DCA 1999).

 In addition, the trial court should correct a scrivener's error in the judgment.   The crime of sexual battery on a child under age twelve is listed as a capital felony.   However, the trial court granted a partial judgment of acquittal as to that portion of the jury's verdict finding that Horn was 18 years old or older.   Consequently, this conviction should be listed as a life felony.   See § 794.011(2)(b), Fla. Stat. (1993).

Accordingly, we affirm Horn's convictions and reverse and remand his sentences with directions.

WHATLEY, Judge.

PARKER, A.C.J., and DANAHY, PAUL W., (Senior) Judge, Concur.