Hinton v. State (714 So. 2d 1129, 1998)

ON MOTION FOR REHEARING

PER CURIAM.

We deny Appellant’s motion for rehearing but withdraw our opinion of May 6,1998, and substitute the following opinion:

We affirm an order denying Appellant’s motion for post-conviction relief under rule 3.800(a). Appellant was convicted of one count of attempted burglary with a battery. He was sentenced as a habitual offender to 30 years imprisonment. The date of his crime was October 27, 1990. He claims that his sentence exceeds the statutory maximum for a third-degree felony. However, Appellant was convicted of attempted burglary with a battery, a second-degree felony, and was sentenced as a habitual offender. Since his crime occurred on October 27, 1990, the 1989 statutes apply to his sentence.

Section 810.02(2)(a), Florida Statutes (1989), provides that a burglary is a first-degree felony if, during the course of the crime, the defendant makes an assault or battery upon any person. Pursuant to section 777.04(4)(b), Florida Statutes, an attempted first-degree felony is a second-degree felony. The applicable habitual offender statute further provided for a maximum term of 30 years for second-degree felonies. Fla. Stat. § 775.084(4)(a)2 (1989).

In Tillman v. State, 525 So.2d 862 (Fla.1988), the supreme court considered a departure sentence imposed under the 1985 statutes for attempted burglary of a conveyance with an assault or battery. The court stated that absent the departure:

the statutory maximum of fifteen years ... [would have been increased] to thirty years, the enhanced statutory maximum allowed under the habitual offender statute. ...

Id. at 863. Appellant, like the defendant in Tillman, faced a maximum sentence as a habitual offender of 30 years and that is what he received.

STONE, C.J., and DELL and FARMER, JJ., concur.