ALFRED ERAETA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence for attempted murder must be vacated because the appellant was not charged with or convicted of attempted murder of a law enforcement officer, a prerequisite for the enhanced sentence.
[1] A sentence imposed under a statute requiring a minimum term of imprisonment for attempted murder of a law enforcement officer is invalid if the defendant was not convicte…
[2] A statute enhancing penalties for attempted murder of a law enforcement officer requires that the elements of that offense be alleged in the charging instrument, instruct…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of attempted murder and two counts of resisting arrest with violence. The trial court imposed an enhanced sentence based on at…
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PER CURIAM.
Appellant was charged with and found guilty of one count of attempted murder and two counts of resisting arrest with violence. The trial court sentenced him to a term of life with no possibility of parole for twenty-five years. We vacate the sentence and remand for resentencing as appellant was neither charged with nor convicted of attempted murder of a law enforcement officer engaged in the lawful performance of his duties. See § 784.07(3), Fla.Stat. (Supp.1988).
Contrary to the state’s assertion that section 784.07(3) did not create a new crime, the defendant in Gonzalez v. State, 572 So. 2d 999 (Fla. 3d DCA 1990), was formally charged with attempted first-degree murder of a law enforcement officer and convicted of aggravated assault on a law enforcement officer. Furthermore, appellant responds that even if section 784.07(3) is construed as an enhancement statute, its elements still must be alleged in the information, the jury must be instructed on these elements, and the verdict must reflect a finding of guilt of attempted murder of a law enforcement officer before appellant can be sentenced pursuant to section 775.0825. Section 775.-0825, Florida Statutes (Supp.1988), states:
Attempted murder of law enforcement officer; penalty. — Any person convicted of attempted murder of a law enforcement officer as provided in s. 784.07(3) shall be required to serve no less than 25 years before becoming eligible for parole. Such sentence shall not be subject to the provisions of s. 921.001.
As appellant asserts, he was not convicted of attempted murder of a law enforcement officer, but of attempted first-degree murder with a firearm. According to the language of section 775.0825, a conviction pursuant to section 784.07(3) is a prerequisite to a sentencing under section 775.0825. Because appellant’s judgment does not reflect such a conviction, his sentence pursuant to section 775.0825 cannot stand. See also, for the purpose of analogy, State v. Rodriguez, 575 So. 2d 1262, 1265 (Fla.1991).
GLICKSTEIN, WARNER and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hardage v. State, 581 So. 2d 965 (Fla. 2d DCA 1991)…he notations referring to section 775.0825, Florida Statutes (1987). Although that statute requires a defendant to serve no less than twenty-five years for attempted murder of a law enforcement officer, it does not apply to robbery. Eraeta v. State, 575 So. 2d 206 (Fla. 4th DCA 1991). The notations do not otherwise affect the robbery sentences because they fall within the permitted range. Affirmed. HALL, A.C.J., and THREADGILL and ALTENBERND, JJ., concur.…
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Wolfe v. State, 585 So. 2d 506 (Fla. 2d DCA 1991)…ant’s case, Hardage v. State, 581 So. 2d 965 (Fla. 2d DCA 1991). Although section 775.0825 requires a defendant to serve no less than twenty-five years for attempted murder of a law enforcement officer, it does not apply to robbery. Eraeta v. State, 575 So. 2d 206 (Fla. 4th DCA 1991). The notation does not otherwise affect the robbery sentences, which are concurrent to the other sentences. Affirmed. SCHEB, A.C.J., and THREADGILL and ALTENBERND, JJ., concur.…
Authorities Cited
- State v. Narcisco Rodriguez, 575 So. 2d 1262 (Fla. 1991)
- Gonzalez v. State, 572 So. 2d 999 (Fla. 3d DCA 1990)