Rivera v. State, 97-1548
| Decision Date | 09 September 1998 |
| Docket Number | No. 97-1548,97-1548 |
| Citation | 718 So.2d 285,23 Fla. L. Weekly 2093 |
| Parties | 23 Fla. L. Weekly 2093 Noel RIVERA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Siobhan Helene Shea, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Denise S. Calegan, Assistant Attorney General, West Palm Beach, for appellee.
Defendant appeals convictions for attempted second degree murder and aggravated battery. The trial court enhanced the conviction of attempted second degree murder from a second degree felony to a first degree felony because of the use of a deadly weapon. The state concedes error because there was no express finding by the jury that the defendant had used a deadly weapon. Therefore, we must, as we did in King v. State, 705 So.2d 668 (Fla. 4th DCA 1998), reverse for resentencing.
Appellant argues that we should direct the trial court to sentence for the attempted second degree murder conviction as a level eight offense because of dicta in Roberts v. State, 694 So.2d 825 (Fla. 2d DCA 1997). We disagree with that dicta. Second degree murder is a level ten offense. §§ 782.04(2), 921.0012, Fla. Stat. (1995). For purposes of sentencing, an attempt is ranked one level below the offense attempted. § 777.04(4)(a), Fla. Stat. (1995).
Reversed.
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Torres v. State
...5. See Richman v. State, 793 So.2d 1072 (Fla. 3d DCA 2001). See also Greene v. State, 714 So.2d 554 (Fla. 2d DCA 1998); Rivera v. State, 718 So.2d 285 (Fla. 4th DCA 1998). ...
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