Opinion
Case No. 2D01-2077
Opinion filed November 20, 2002.
Appeal from the Circuit Court for DeSoto County; James S. Parker, Judge.
James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
Richard E. Doran, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
Jimmy Lamb appeals his sentences for convictions of two counts of sexual acts with a child by a person in custodial authority, and one count of attempted sexual battery on a child under twelve years of age. The trial court sentenced Mr. Lamb to three concurrent sentences totaling twenty-two years.
The sentences were imposed on the basis of a negotiated plea. Unfortunately, the trial court used a Criminal Punishment Code scoresheet for all offenses when a 1995 scoresheet applied to the attempted sexual battery charge. The defendant filed a motion to correct this sentencing error pursuant to Florida Rule of Criminal Procedure 3.800 (b)(2) during this appeal, and the trial court failed to rule on the motion. Accordingly, the motion is deemed to have been denied. See Fla.R.Crim.P. 3.800 (b)(1)(B). The State conceded a 1995 scoresheet applied to the attempted sexual battery charge because the offense occurred while the 1995 scoresheet was still in effect.
Based on the State's concession, we reverse the sentence on the attempted sexual battery charge and remand to the trial court. Whether the trial court can merely resentence Mr. Lamb on the attempted sexual battery charge, or whether the trial court must give him an opportunity to withdraw his negotiated plea, are matters that we do not resolve at this time.
Reversed and remanded.
ALTENBERND, SALCINES, and STRINGER, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED