Florida District Courts of Appeal, 1991

Banaszak v. State

Florida District Courts of Appeal · Decided May 22, 1991 · No. 90-00693 · Hall, Lehan, Scheb

579 So. 2d 867; 1991 Fla. App. LEXIS 4744; 1991 WL 85540 (Southern Reporter, Second Series)

Cases that cite this one

10 later published cases cite this decision.

JERRY LEE PRITCHETT v. STATE OF FLORIDA (Fla. Dist. Ct. App. 2020)
VERNAL CURRY v. STATE OF FLORIDA (Fla. Dist. Ct. App. 2019)
CORNELIO HERRERA-MARTINEZ v. STATE OF FLORIDA (Fla. Dist. Ct. App. 2019)
RAUL DELAROSA v. STATE OF FLORIDA (Fla. Dist. Ct. App. 2019)
GERO RAFFONE v. STATE OF FLORIDA (Fla. Dist. Ct. App. 2019)
Curry v. State (Fla. Dist. Ct. App. 2019)
Curry v. State (Fla. Dist. Ct. App. 2019)
Herrera-Martinez v. State (Fla. Dist. Ct. App. 2019)
Herrera-Martinez v. State (Fla. Dist. Ct. App. 2019)
EDDIE CARGILE v. STATE OF FLORIDA (Fla. Dist. Ct. App. 2018)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

HALL, Judge.

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.

*868Because 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.

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