Cerrato v. State, 90-1069
| Citation | 16 Fla. L. Weekly 621,576 So.2d 351 |
| Decision Date | 05 March 1991 |
| Docket Number | No. 90-1069,90-1069 |
| Parties | 16 Fla. L. Weekly 621 Balmory Antonio CERRATO, Appellant, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Bennett H. Brummer, Public Defender, and Marti Rothenberg and Carol J.Y. Wilson, Asst. Public Defenders, for appellant.
Robert A. Butterworth, Atty. Gen., and Jorge Espinosa, Asst. Atty. Gen., for appellee.
Before HUBBART, NESBITT and JORGENSON, JJ.
We affirm the judgment of conviction for attempted second-degree murder. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). However, because the information did not charge the defendant with shooting the victim with a firearm, the trial court erred in reclassifying the offense from a second-degree felony to a first-degree felony and in imposing a three-year mandatory minimum sentence. See Sullivan v. State, 562 So.2d 813 (Fla. 1st DCA 1990) (); Cox v. State, 530 So.2d 464 (Fla. 5th DCA 1988) (); Peck v. State, 425 So.2d 664 (Fla.2d DCA 1983) ().
Accordingly, we affirm the judgment of conviction for attempted second-degree murder but reverse the sentence and remand for resentencing. On remand, the trial court must reclassify the offense to a second-degree felony and resentence the defendant under the guidelines using a new guidelines scoresheet.
Affirmed in part, reversed in part, and remanded with directions.
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...exception. On remand, the trial court shall strike the minimum mandatory requirement on the kidnapping conviction. See Cerrato v. State, 576 So.2d 351 (Fla. 3d DCA 1991); Peck v. State, 425 So.2d 664 (Fla. 2d DCA HALL, A.C.J., and PATTERSON and ALTENBERND, JJ., concur. ...
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Spencer v. State, 90-2326
...use of a firearm because the information did not allege, as to that particular count, that a firearm was used. Cerrato v. State, 576 So.2d 351 (Fla. 3d DCA 1991). The cause is thus remanded for resentencing with directions that the attempted first degree murder conviction be reclassified fr......