CURTIS MCQUAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
McQuay was convicted of attempted burglary, possession of burglary tools, and three counts of battery upon a law enforcement officer. McQuay’s sole contention on appeal is that the seven year sentence imposed for attempted burglary is excessive and illegal. We agree and reverse that sentence. An attempt to commit a burglary of any degree constitutes a third degree felony punishable by a term of imprisonment not exceeding five years. Sections 777.04(4)(c), 810.02 and 775.082(3)(d), Florida Statutes (1977); Massey v. State, 348 So. 2d 1244 (Fla. 1st DCA 1977), cert. den. 354 So. 2d 983 (Fla.1977).
Therefore, the sentence imposed for attempted burglary is vacated and the cause is remanded for proper sentencing. McQuay need not be present for this purpose.
McCORD, C. J., and ERVIN and BOOTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Goree v. State, 411 So. 2d 1352 (Fla. 3d DCA 1982)…d and the defendant is armed, see Section 810.02, Florida Statutes (1979)] still constitutes a third-degree felony. Williams v. State, 386 So. 2d 631 (Fla. 2d DCA 1980). Accord Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981); McQuay v. State, 368 So. 2d 908 (Fla. 1st DCA 1979); State ex rel. Washington v. Rivkind, 350 So. 2d 575 (Fla. 3d DCA 1977); Massey v. State, 348 So. 2d 1244 (Fla. 1st DCA), cert. denied, 354 So. 2d 983 (Fla.1977). Second, the trial court’s retention of jurisdiction over one-thir…
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Flenoil Crook v. State, 385 So. 2d 1136 (Fla. 1st DCA 1980)…Section 777.-04(4)(c), Florida Statutes (1977), provides: If the offense attempted . . . is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree . (emphasis supplied) McQuay v. State, 368 So. 2d 908 (Fla. 1st DCA 1979). A third degree felony is punishable by a term of imprisonment not exceeding five years. Section 775.082(3)(d), Florida Statutes (1977). The State contends that, although the penalty for attempted burglary is otherwise five year…
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Williams v. State, 386 So. 2d 631 (Fla. 2d DCA 1980)…five years. We agree. An attempt to commit a burglary of any degree constitutes a third-degree felony punishable by a term of imprisonment not exceeding five years. §§ 777.04(4)(c), 810.-02(2) and 775.082(3)(d), Fla.Stat. (1979); McQuay v. State, 368 So. 2d 908 (Fla. 1st DCA 1979). Accordingly, appellant’s sentence for attempted burglary is reduced to five years. Appellant’s convictions and sentences are otherwise affirmed. HOBSON, Acting C. J., and DANAHY, J., concur.…
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- Massey v. State, 348 So. 2d 1244 (Fla. 1st DCA 1977)