Opinion
No. 94-02531.
July 19, 1995.
Appeal from the Circuit Court for Pinellas County; W. Douglas Baird, Judge.
James Marion Moorman, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
Christopher Williams, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Angela D. McCravy, Asst. Atty. Gen., Tampa, for appellee.
Christopher Williams appeals his convictions and sentences for attempted armed robbery, two counts of aggravated assault, and resisting an officer with violence. We affirm the convictions, but remand for resentencing because of several errors which the state has conceded.
The defendant claims that the sentences for the attempted robbery and aggravated assault charges were erroneous because the court enhanced the penalty for each of these charges, based on the defendant's use of a mask during the crimes, and the court also sentenced the defendant as a habitual offender. The state concedes that the sentencing was in violation of Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993), and that the cause should be remanded for resentencing on those counts. Under Spicer, upon resentencing the court may either sentence the defendant pursuant to the enhanced penalty provisions of section 775.0845, Florida Statutes (1993), and the sentencing guidelines or sentence the defendant as a habitual offender, but the court may not do both. See also Archibald v. State, 646 So.2d 298 (Fla. 5th DCA 1994).
The state further agrees that the written sentence for Count 4, imposing a sentence of thirty years, must be corrected to conform to the trial court's oral pronouncement of ten years on that count.
The defendant's convictions are affirmed, but the sentences are reversed and the cause is remanded for resentencing in accordance with this opinion.
PARKER, A.C.J., and BLUE, J., concur.