Cole v. State, 96-02405
| Decision Date | 14 August 1998 |
| Docket Number | No. 96-02405,96-02405 |
| Citation | 716 So.2d 325 |
| Parties | 23 Fla. L. Weekly D1907 Jeffrey A. COLE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender and Jennifer Y. Fogle, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
Jeffrey A. Cole challenges his conviction for attempted premeditated murder of a law enforcement officer. He asserts several sentencing errors. We affirm the conviction, but reverse for resentencing.
Cole was convicted of violation of section 784.07(3), Florida Statutes (1993), attempted murder of a law enforcement officer, a life felony with a twenty-five-year minimum mandatory term. § 775.0825, Fla. Stat. (1993). Because a life felony cannot be enhanced by use of the habitual violent felony offender statute, that portion of the judgment and sentence finding Cole to be a habitual offender must be stricken and he must be resentenced accordingly. See Williams v. State, 678 So.2d 443 (Fla. 2d DCA 1996).
Because Cole's offenses occurred on September 17, 1995, his scoresheet was improperly enhanced by 2.0 for law enforcement protection. The enhancement factor applies to attempted murder in the first degree only if committed on or after October 1, 1995. See Fla. R.Crim. P. 3.702(d)(14); § 775.0823(2), Fla. Stat. (1995). The scoresheet must be corrected prior to resentencing.
The trial court sentenced Cole on convictions for grand theft auto and attempted murder. The trial court orally pronounced that the sentences would run concurrently. Because the written sentence fails to state that the sentences are concurrent, the sentencing document must be corrected to conform to the oral pronouncement.
Affirmed in part, reversed in part, and remanded for resentencing.
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Johnson v. State, 2D02-1940.
...to enhanced punishment as a habitual offender under the statute in effect at the time of the offense. We agree. See Cole v. State, 716 So.2d 325 (Fla. 2d DCA 1998). This claim is cognizable in a 3.800(a) motion. See McMaster-Wade v. State, 830 So.2d 217 (Fla. 2d DCA 2002). We therefore rema......