RICKEY SPIVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Rickey Spivey appeals from the denial of his motion to correct sentence. Of the several points raised in Spivey’s motion, only one is meritorious. Spivey received a sentence of sixty years for sexual battery aggravated by the use of a weapon, a life felony. § 794.011(3), Fla.Stat. (1987). He claims this term of years exceeds the maximum allowed by statute. Life felonies committed after October 1, 1983, are punishable “by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.’’ § 775.082(3)(a), Fla.Stat. (1987). We construe this, as does Spivey, to disallow a sixty year sentence. Accordingly, we remand this case with directions to vacate the sentence imposed for sexual battery and to resentence Spivey for that offense to a term of years not to exceed forty. The circuit court’s order denying Spivey’s motion to correct sentence is in all other respects affirmed.
Affirmed in part, reversed in part, and remanded with directions.
RYDER, A.C.J., and SCHOONOVER and HALL, JJ., concur.
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Kip Sterling v. State, 584 So. 2d 626 (Fla. 2d DCA 1991)…October 1,1983, the court may impose a penalty of life in prison or “a term of imprisonment not exceeding 40 years.” Thus a total sanction of 75 years is unlawful and must be reduced. See Committee Note, Fla.R.Crim.P. 3.701(d)(12); Spivey v. State, 526 So. 2d 762 (Fla. 2d DCA 1988). The remaining offenses are also designated as felonies of the first degree. However, subsection 775.082(3)(b) also authorizes “a term of years not exceeding life imprisonment” where specifically provided for by statute. Armed ro…
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Hayes v. State, 598 So. 2d 135 (Fla. 5th DCA 1992)…sentences a defendant under section 775.-082(3)(a), Florida Statutes, to a term of years as opposed to a term of imprisonment for life, the term of years cannot exceed 40. See also, Ward v. State, 558 So. 2d 166 (Fla. 1st DCA 1990); Spivey v. State, 526 So. 2d 762 (Fla. 2d DCA 1988). As the unarmed kidnapping offense was a first degree felony punishable by imprisonment for a term of years not exceeding life, the court held the 99 year sentence was proper. THE PROCEDURAL PROBLEM Part of the problem in this c…
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Ward v. State, 558 So. 2d 166 (Fla. 1st DCA 1990)…), Florida Statutes (1987). Section 775.082(3)(a) has been interpreted to prohibit a court from sentencing a defendant for a life felony committed after October 1, 1983, to a term of incarceration for a period of years exceeding 40. Spivey v. State, 526 So. 2d 762 (Fla. 2d DCA 1988). The question raised in this case is whether section 775.082(3)(a) also disallows a sentence where the combined periods of incarceration and probation exceed 40 years. The law is well established that “a penal statute must be stri…
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