JAMES SPENCER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Upon our review of the record and the state's confession of error, we vacate the defendant’s sentence for attempted first-degree murder which was enhanced to a life felony based on defendant’s use of a firearm because the information did not allege, as to that particular count, that a firearm was used. Cerrato v. State, 576 So. 2d 351 (Fla. 3d DCA 1991). The cause is thus remanded for resentencing with directions that the attempted first degree murder conviction be reclassified from a life felony to a first-degree felony and that the defendant’s guidelines scoresheet be recalculated accordingly. We point out, however, that the minimum mandatory three-year sentence was properly imposed for those additional counts of which the defendant was convicted where the use of a firearm was alleged. See Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985).
Reversed and remanded with directions to correct the sentence for attempted first-degree murder.
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Mesa v. State, 632 So. 2d 1094 (Fla. 3d DCA 1994)…(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years." § 775.087(2)(a), Fla.Stat. (1991). . See, e.g., Gibbs v. State, 623 So. 2d 551 (Fla. 4th DCA), rev. denied., 630 So. 2d 1099 (Fla.1993) (No. 82,577); Spencer v. State, 588 So. 2d 71 (Fla. 3d DCA 1991); Cerrato v. State, 576 So. 2d 351 (Fla. 3d DCA 1991); Helmick v. State, 569 So. 2d 869 (Fla. 2d DCA 1990); Cox v. State, 530 So. 2d 464 (Fla. 5th DCA 1988).…
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Spencer v. State, 611 So. 2d 16 (Fla. 3d DCA 1992)…First, although not raised by the parties, the forty-year sentence for attempted first degree murder exceeds the thirty-year legal maximum for a first degree felony. See §§ 775.082(3)(b), 777.-04(4)(a), 782.04(1), Fla.Stat. (1989); Spencer v. State, 588 So. 2d 71 (Fla. 3d DCA 1991). Defendant must be resentenced on that count within the legal maximum. Second, the sentencing which occurred below was a resentencing before a successor judge. Defendant had appealed the sentence imposed by the judge who tried th…
Authorities Cited
- Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985)
- Balmory Antonio Cerrato v. State, 576 So. 2d 351 (Fla. 3d DCA 1991)