Opinion
No. 90-02862.
December 27, 1991.
Appeal from the Circuit Court, Collier County, Charles T. Carlton, J.
James Marion Moorman, Public Defender, and William Pena Wells, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Daniel Allen Wingate challenges his convictions and sentences for armed robbery with a deadly weapon, aggravated battery and falsely impersonating a police officer during the commission of a felony. He raises three points on appeal. We find merit in his third argument that the trial court erred in exceeding the maximum penalty of fifteen years for count II, aggravated battery, a second degree felony.
Our supreme court recently held that aggravated battery with the use of a deadly weapon, section 784.045(1)(b), is not subject to reclassification pursuant to section 775.087(1) because the use of a weapon is an essential element of the crime. Lareau v. State, 573 So.2d 813 (Fla. 1991). The combined terms of incarceration and probation cannot exceed the statutory maximum. State v. Lindsey, 560 So.2d 406 (Fla. 5th DCA 1990).
The trial court did not have the benefit of this decision at the time appellant was sentenced.
We affirm the appellant's convictions, the sentences for armed robbery with a deadly weapon and falsely impersonating a police officer during the commission of a felony, and reverse and remand for resentencing for aggravated battery in accord with this opinion.
FRANK and HALL, JJ., concur.