Small v. State, 85-69

• Decision Date: 10 May 1985
• Docket Number: No. 85-69,85-69
• Citation: 469 So.2d 164,10 Fla. L. Weekly 1177
• Parties: 10 Fla. L. Weekly 1177 Michael SMALL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 164

469 So.2d 164

10 Fla. L. Weekly 1177

Michael SMALL, Appellant, v. STATE of Florida, Appellee.

No. 85-69.

District Court of Appeal of Florida,

Second District.

May 10, 1985.

Appeal pursuant to Fla.R.App.P. 9.140(g) from Circuit Court, Pinellas County; Maynard F. Swanson, Jr., Judge.

CAMPBELL, Judge.

Appellant seeks review of the trial court's denial of his motion for post-conviction relief pursuant to rule 9.140(g), Florida Rules of Appellate Procedure (1985). We affirm.

Only one issue presented by appellant has merit. Appellant claims that the sixty-year sentences imposed for the offenses of attempted second degree murder and attempted kidnapping were in excess of the amount authorized by law. See Small v. State, 428 So.2d 337 (Fla. 2d DCA 1983). On remand, the trial court was directed to correct each sentence to thirty years. The trial court complied as to the attempted kidnapping charge. On the attempted second degree murder conviction, the trial court amended the judgment to reflect the crime was committed with a firearm so as to uphold the sixty-year sentence under the enhancement provisions of sections 775.087 and 775.084, Florida Statutes (1981).

According to State v. Overfelt, 457 So.2d 1385 (Fla.1984), the jury must make a specific finding as to whether the accused actually possessed a firearm during the commission of the crime.

We have ordered the record to be supplemented to demonstrate whether there was a specific finding by the jury that the offense was committed with a firearm as required by Overfelt. We have received the supplement consisting of the certified copy of the jury verdict which makes a specific finding of the use of a firearm.

We, therefore, affirm.

RYDER, C.J., and OTT, J., concur.