Lane v. State , 973 So. 2d 654 ( 2008 )

973 So. 2d 654 (2008)

Gary Allen LANE, Appellant,
v.
STATE of Florida, Appellee.

No. 1D06-3597.

District Court of Appeal of Florida, First District.

February 6, 2008.

Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Gary Allen Lane appeals the enhancement of his sentence for aggravated battery based on the imposition of a domestic violence multiplier. We reverse and remand for resentencing.

Florida Rule of Criminal Procedure 3.704(d)(23) provides for a domestic violence multiplier of one-and-a-half times when a domestic battery is committed in the presence of a child under the age of 16. In this case, the state presented an argument that the child of the appellant and the victim resided in the home. However, no evidence was presented by the state on this issue or, more importantly, on the issue of whether their child was present during the domestic violence. Rolle v. State, 835 So. 2d 1258, 1259 (Fla. 4th DCA 2003) (remanding to the trial court for correction of the sentence when the State failed to establish the presence of a child under the age of 16 during the incident). In fact, the victim's affidavit, which was accepted into evidence without objection, stated that the child was not in the home at the time of the battery.

We, therefore, REVERSE and REMAND to the trial court for the preparation of a new Criminal Punishment Code Scoresheet without the enhancement provided by rule 3.704(d)(23) and for resentencing thereon.

BROWNING, C.J., KAHN and ROBERTS, JJ., concur.