Wilcox v. State , 783 So. 2d 1150 ( 2001 )

783 So.2d 1150 (2001)

John WILCOX, Appellant,
v.
STATE of Florida, Appellee.

No. 1D99-4625.

District Court of Appeal of Florida, First District.

April 10, 2001.

Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, Janelle C. Gillaspie and Karen M. Holland, Assistant Attorneys General, Tallahassee, for Appellee.

EN BANC

BARFIELD, C.J.

John Wilcox was convicted of attempted capital sexual battery and sentenced to a term of imprisonment followed by probation with conditions imposed pursuant to section 948.03, Florida Statutes (Supp. 1998). By motion pursuant to Rule 3.800(b), appellant challenged the imposition of the conditions of probation, asserting that attempted capital sexual battery is an offense under chapter 777, Florida Statutes (1997), and not an offense under chapter 794, Florida Statutes (1997).

We affirm the imposition of conditions of probation pursuant to section 948.03, Florida Statutes (Supp.1998), holding that attempted capital sexual battery is an offense under chapter 794, Florida Statutes. As we said in Zopf v. Singletary, 686 So.2d 680, 681 (Fla. 1st DCA 1996), attempted sexual battery is "a crime under section 794.011(2), Florida Statutes, as modified by the ``attempt' statute, section 777.04, Florida Statutes." To the extent Lee v. State, 766 So.2d 374 (Fla. 1st DCA 2000), holds otherwise, we recede from Lee.

We find no merit to the remaining constitutional challenges raised by Wilcox.

AFFIRMED.

ERVIN, BOOTH, MINER, ALLEN, WOLF, KAHN, WEBSTER, DAVIS, BENTON, VAN NORTWICK, PADOVANO, BROWNING, LEWIS, and POLSTON, JJ., concur.