Laster v. State , 486 So. 2d 88 ( 1986 )

486 So. 2d 88 (1986)

James Lawrence LASTER, Appellant,
v.
STATE of Florida, Appellee.

No. 85-1444.

District Court of Appeal of Florida, Fifth District.

April 10, 1986.

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Joseph N. D'Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a sentence. Appellant was convicted of two crimes; sexual battery of a child under twelve years of age and lewd and lascivious assault upon a child.

Sexual battery on a child under twelve years of age is a capital felony punishable by life imprisonment with a minimum of twenty-five years imprisonment. It is not a life felony and is not subject to a guideline sentence; it is not scored within the guidelines. Rusaw v. State, 451 So. 2d 469 (Fla. 1984); Brosz v. State, 466 So. 2d 256 (Fla. 5th DCA 1985).

The primary offense at sentencing, for guideline sentencing purposes, was the lewd assault. The points assessed for a prior offense of uttering a forged check should not have been added to the scoresheet because that crime was committed after the lewd assault and thus is not a prior offense. Fla.R.Crim.P. 3.701(d)(5)(a). It does not matter that appellant had been convicted and sentenced for uttering the forged check before the instant conviction and sentences. Although little, if any, difference in the sentence will result, we must remand for resentencing.

SENTENCE QUASHED; REMANDED.

UPCHURCH and COWART, JJ., concur.