Melton v. State

746 So. 2d 1188 (1999)

James Roy MELTON, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 99-0789.

District Court of Appeal of Florida, Fourth District.

December 8, 1999. Rehearing Denied January 6, 2000.

Richard L. Jorandby, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

DELL, J.

We affirm appellant's conviction for committing a lewd, lascivious, or indecent act upon a child under the age of sixteen in violation of section 800.04, Florida Statutes (1997). The trial court did not abuse its discretion when it sustained the State's objection to a comment made by appellant's counsel during closing argument. The objectionable statement as phrased constituted a comment upon facts not in evidence.

We reverse appellant's sentences under both the prison releasee reoffender statute and the habitual offender statute as a violation of the double jeopardy protection against multiple punishment for the same offense. See Cardell Adams v. State, No. 98-3338, ___ So.2d ___, ___, 1999 WL 966743, at *2 (Fla. 4th DCA Oct.20, 1999). We remand for the trial court to vacate appellant's sentence and resentence him pursuant to either the Prison Releasee Reoffender statute or the Habitual Felony Offender statute, but not both. See §§ 775.084, 775.082, Fla. Stat. (1999); John M. Glave v. State, 745 So. 2d 1065 (Fla. 4th DCA 1999).

AFFIRMED in part, REVERSED in part, and REMANDED.

WARNER, C.J., and GUNTHER, J., concur.