VICTOR ECHEVARRIA

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

VICTOR ECHEVARRIA,

Appellant,

v. Case No. 5D19-3074

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed May 8, 2020

3.800 Appeal from the Circuit Court for Volusia County, James R. Clayton, Judge.

Victor Echevarria, Raiford, pro se.

No Appearance for Appellee.

PER CURIAM.

Appellant, Victor Echevarria, appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Concluding that Appellant’s sentences exceed the statutory maximum, we reverse.

In March 2012, Appellant pled nolo contendere to attempted sexual battery on a person less than twelve years of age (count I) and attempted lewd or lascivious molestation on a person less than twelve years of age (count II). The court imposed concurrent sentences of twenty years in prison followed by life probation.

3 imprisonment.’” Adams, 901 So. 2d at 276 (quoting § 775.082(3)(a)3., Fla. Stat. (2011)). Our limited record does not contain any facts or evidence demonstrating that Appellant injured the victim’s sexual organs. Without such evidence, we are compelled to reverse and remand for further proceedings as to count I. We do so, however, without prejudice for the trial court to attach further documentation to conclusively show Appellant pled to attempted sexual battery with injury to the victim’s sexual organs. We next consider count II, attempted lewd or lascivious molestation on a person less than twelve years of age. The offense of lewd or lascivious molestation on a person less than twelve years of age is a life felony, while the attempted offense is a seconddegree felony punishable by up to fifteen years in prison. See § 800.04(5)(b), Fla. Stat. (2011) (“An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony . . . .”); § 777.04(4)(c), Fla. Stat. (2011) (“[I]f the offense attempted . . . is a life felony or a felony of the first degree, the offense of criminal attempt . . . is a felony of the second degree.”); § 775.082(3)(c), Fla. Stat. (2011) (setting the statutory maximum for a second-degree felony at fifteen years). As Appellant was convicted of the attempted offense, his sentence of twenty years’ imprisonment followed by life probation clearly exceeds the statutory maximum and requires reversal.

We accordingly reverse the trial court’s denial of Appellant’s rule 3.800 motion and remand for further proceedings. Because the sentences were imposed pursuant to a plea agreement, the State must be given the option “to agree to a legal sentence or to withdraw from the plea agreement and proceed to trial on the original charges.” See Almenares v.