Bloodworth v. State

Appellant seeks review of his convictions of attempted sexual battery of a child and lewd and lascivious act in the presence of a child, and of the sentence imposed with regard to the conviction of lewd and lascivious act in *384the presence of a child. Specifically, appellant contends the trial court abused its discretion in determining that nine-year-old L.S. was competent to testify, and that the sentence imposed as to the conviction of lewd and lascivious act in the presence of a child exceeds the statutory maximum for the offense. We affirm the first issue without discussion, and reverse and remand for re-sentencing with respect to the second issue.

The offense of lewd and lascivious act in the presence of a child under the age of sixteen is a second degree felony, for which the maximum period of incarceration is fifteen years. See § 800.04(4), Pla.Stat. (1995). The trial court imposed a sentence of sixty-five months, to be followed by a ten-year period of probation. The total period of incarceration and probation exceeds the maximum permissible term of incarceration which may be imposed as punishment for the crime. See Kline v. State, 642 So.2d 1146, 1147 (Fla. 1st DCA 1994).

Accordingly, the sentence imposed for lewd and lascivious act in the presence of a child is reversed and remanded with directions to impose a sentence which does not exceed the statutory maximum for a second degree felony.