Mathuus v. State

WARNER, C.J. We affirm appellant’s convictions for several counts of capital sexual battery, sexual battery under familial authority, and felony child abuse. Appellant’s contention on appeal is that the state failed to prove that any of the charged sexual batteries to the child victim occurred within the time periods alleged in each count of the information. To the contrary, the victim testified how old she was when the sexual batteries occurred, and the trial court noted that her age in each instance fell within the time frames of the charge. The appellant never sought to narrow the time frames as alleged in the information. Cf. Dell’Orfano v. State, 616 So.2d 38 (Fla.1993). There was no error. The state concedes, however, that appellant’s sentences on Counts V, VII, and VIII must be reversed for resentencing because those sentences were based on the 1995 sentencing guidelines declared unconstitutional under Heggs v. State, 759 So.2d [1091] 620 (Fla.2000). See also Trapp v. State, 760 So.2d 924 (Fla.2000). The sentences on these counts are outside the range permitted by the 1994 guidelines. We thus remand for resentencing based upon the valid laws in effect at the time of the offenses. Convictions affirmed; remanded for re-sentencing. FARMER and TAYLOR, JJ., concur.