
    Charles HAYES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 85-1240.
    District Court of Appeal of Florida, Fifth District.
    May 22, 1986.
    
      James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

This is an appeal from a departure sentence. We reverse, because even if we assume that departure from the guidelines was warranted, a matter not raised and not decided here, the thirty year sentence imposed for the crime of attempted sexual battery with a deadly weapon exceeded the statutory maximum penalty for the crime.

Sexual battery with a deadly weapon is a life felony. § 794.011(3), Fla. Stat. (1985). An attempt to commit a criminal offense, which if completed would be classified as a life felony, is designated a second degree felony, punishable by a term of imprisonment not to exceed 15 years. § 777.04(4)(b), Fla.Stat. (1985). The State concedes the correctness of this assertion. Neither can the penalty be enhanced under the provisions of section 775.087(1), because of the use of a deadly weapon, because that statute by its terms does not apply to a felony in which the use of the firearm is an essential element. State v. Brown, 476 So.2d 660 (Fla.1985).

The sentence for Count II, attempted sexual battery with a deadly weapon, is vacated and the cause is remanded for re-sentencing on that count, using a score-sheet properly classifying the offense as a second degree felony.

Sentence VACATED in part and REMANDED.

COBB, C.J., and DAUKSCH, J., concur.  