Mitchell v. State

Full title: LESTER B. MITCHELL, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Fifth District

Date published: Aug 24, 2001

791 So. 2d 1257 (Fla. Dist. Ct. App. 2001)

Opinion

Case No. 5D01-232

Opinion filed August 24, 2001

Appeal from the Circuit Court for Brevard County, Jere Lober, Judge.

James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Alfred Washington, Jr., Assistant Attorney General, Daytona Beach, for Appellee.

HARRIS, J.

Mitchell contends that the trial court erred in classifying his offense of sexual conduct with a minor in custodial authority as a level 9 instead of a level 7 offense because at the time of his offense it was not listed in the sentencing ranking chart. The State concedes that we have previously ruled against it on this issue in Roberts v. State, 715 So.2d 302 (Fla. 5th DCA 1998), but urges that we recede from that case. The State contends that because it was an oversight that the legislature did not properly list the offense, we should consider the issue as though it had been listed. We decline the invitation and reverse.

REVERSED for resentencing.

COBB and PETERSON, JJ., concur.