Phillips v. State

CASANUEVA, Judge.

James David Phillips appeals his judgments and sentences for sexual battery on a person less than twelve years of age and lewd and lascivious molestation on a person less than twelve years of age. He raises several issues on appeal, but we find merit only in his argument that his judgment for lewd and lascivious molestation should be remanded to omit the language stating that the victim was less than twelve years old.

The jury was instructed that before it could find Mr. Phillips guilty of committing lewd or lascivious molestation, it was required to find that the victim was less than sixteen years old, a second-degree felony. See § 800.04(5)(c)(2), Fla. Stat. (2004). However, the judgment reflects that he was found guilty of a first-degree felony. § 800.04(5)(b). Mr. Phillips filed a motion to correct sentencing error, and the trial court agreed that Mr. Phillips was found guilty of a second-degree felony and reduced his habitual felony offender sentence from sixty years to thirty years in prison, see § 775.084(4)(a)(2), Fla. Stat. (2004), but it failed to correct the judgment. Mr. Phillips argues, and the State correctly concedes, that the judgment should be remanded for the trial court to correct the judgment to reflect that the lewd or lascivious molestation conviction was a second-degree felony. See § 800.04(5)(c)(2).

Accordingly, we remand this case for the trial court to enter a corrected judgment reflecting that Mr. Phillips was found guilty of lewd or lascivious molestation. Mr. Phillips need not be present for the correction of his judgment. Mr. Phillips’s judgment for sexual battery on a person less than twelve years of age and his sentences are affirmed.

MORRIS and SLEET, JJ., Concur.