Spivey v. State ( 1988 )

526 So. 2d 762 (1988)

Rickey SPIVEY, Appellant,
v.
STATE of Florida, Appellee.

No. 88-869.

District Court of Appeal of Florida, Second District.

June 10, 1988.

Rickey Spivey, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Rickey Spivey appeals from the denial of his motion to correct sentence. Of the several points raised in Spivey's motion, only one is meritorious. Spivey received a sentence of sixty years for sexual battery aggravated by the use of a weapon, a life felony. § 794.011(3), Fla. Stat. (1987). He claims this term of years exceeds the maximum allowed by statute. Life felonies committed after October 1, 1983, are punishable "by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years." § 775.082(3)(a), Fla. Stat. (1987). We construe this, as does Spivey, to disallow a sixty year sentence. Accordingly, we remand this case with directions to vacate the sentence imposed for sexual battery and to resentence Spivey for that offense to a term of years not to exceed forty. The circuit court's order denying Spivey's motion to correct sentence is in all other respects affirmed.

Affirmed in part, reversed in part, and remanded with directions.

RYDER, A.C.J., and SCHOONOVER and HALL, JJ., concur.