Opinion
No. 76-232.
October 25, 1977.
Appeal from the Circuit Court, Orange County, B.C. Muszynski, J.
Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was initially charged in Count I of the information with involuntary sexual battery by using a deadly weapon or actual physical force likely to cause serious personal injury, a life felony. Immediately before trial, the State filed an amended information charging appellant in Count I with involuntary sexual battery by threatening to use force likely to cause serious personal injury, a first degree felony.
Although the State contends on appeal that the amended information did not reduce the charge from a life felony to a felony of the first degree, the trial transcript belies that contention. The prosecutor stated without equivocation that the amended information charged appellant with a first degree felony. We agree with the prosecutor. Therefore, the court was in error in sentencing appellant to forty-six years, two hundred and sixty-five days imprisonment on Count I. The maximum sentence allowable for Count I as amended, a first degree felony, is thirty years.
We have carefully examined all of appellant's other points and find no reversible error involved therein.
Accordingly, the sentence appealed from is modified so as to reduce the sentence on Count I to thirty years. In all other respects the judgment and sentence appealed from are affirmed.
AFFIRMED AS MODIFIED.
ALDERMAN, C.J., DOWNEY, J., and PARHAM, HARRY C., Associate Judge, concur.