Opinion
No. 90-00693.
May 22, 1991.
Appeal from the Circuit Court, Manatee County, Robert J. Boylston, J.
Douglas A. Wallace, Bradenton, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
Banaszak challenges his conviction for sexual battery of a child under twelve. He presents several issues for review; however, we find merit only in the issue relating to the improper preparation of his guidelines scoresheet.
Because sexual battery of a child is a capital felony under section 794.011(2), Florida Statutes (1989), it is not subject to a guidelines sentence and cannot be scored as the primary offense and a life felony on a guidelines scoresheet. See § 921.001(4), Fla. Stat. (1989); Rivas v. State, 554 So.2d 636 (Fla. 4th DCA 1989), and cases cited therein; and Boatwright v. State, 512 So.2d 955 (Fla. 1st DCA 1987).
The trial court indicated sexual battery as the primary offense on Banaszak's guidelines scoresheet and treated it as a life felony. The two convictions for lewd and lascivious acts were thus scored as additional offenses. Since that was error under the authority cited above, the case should be remanded for preparation of a new scoresheet and resentencing on the lewd and lascivious convictions.
Accordingly, we remand this case for corrections consistent with this opinion, but affirm Banaszak's convictions in all other respects.
SCHEB, A.C.J., and LEHAN, J., concur.