JUAN FIDENCIO BAQUE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Juan Baque appealed his conviction for attempted second-degree murder with a weapon, challenging both the conviction and the sentencing classification. The Florida Third District Court of Appeal affirmed the conviction and held that the offense was properly classified as a first-degree felony for sentencing purposes by first applying the attempt statute and then the firearm enhancement statute.
The conviction was affirmed on all counts. The offense was properly classified as a first-degree felony by first applying the attempt statute (reducing second-degree murder to a second-degree felony) and then applying the firearm enhancement statute (reclassifying to first-degree felony). The judgment was remanded solely to correct a clerical error in the statutory citation.
[1] A conviction for attempted second degree murder with a weapon can be properly classified as a first degree felony for sentencing purposes by applying the attempt statute…
[2] The order of applying the attempt statute and the weapon enhancement statute to reclassify a felony is significant, and the crime actually committed must be determined be…
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Join FLexlaw to unlock all legal intelligence“the crime which was actually committed (in this case, attempted second degree murder) must be determined before any enhancement due to the use of a weapon can be applied”
Establishes the proper sequence for applying the attempt statute before the weapon enhancement statute
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Join FLexlaw to unlock all legal intelligenceBaque was convicted of attempted second-degree murder with a weapon. The conviction was challenged on four grounds, with the defendant arguing that th…
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PER CURIAM.
In this appeal from a conviction for attempted second degree murder with a weapon, the defendant raises four issues. The first two issues, challenging the defendant’s conviction, are without merit. His conviction is affirmed.
As to the defendant’s third issue, we find that the defendant’s offense was properly classified as a first degree felony for sentencing purposes. See §§ 782.04(2), 777.04(4)(b), 775.087(l)(b), Fla.Stat. (1991).
This classification was properly reached by: first, applying the attempt statute to reduce the first degree felony of second degree murder to a second degree felony, and; second, applying the firearm/weapon enhancement statute to reclassify the offense from a second degree felony to a first degree felony. See Miller v. State, 460 So. 2d 373, 374 (Fla.1984); Zeigler v. State, 647 So. 2d 272, 273 n. 1 (Fla. 4th DCA 1994); Howe v. State, 596 So. 2d 1227, 1227 (Fla. 2d DCA 1992); Montoya v. State, 489 So. 2d 794, 795 (Fla. 3d DCA), review denied, 496 So. 2d 143 (Fla.1986); Davis v. State, 486 So. 2d 45, 46 (Fla. 5th DCA 1986); Cooper v. State, 455 So. 2d 588, 589 (Fla. 1st DCA 1984) (en banc), review denied, 464 So. 2d 554 (Fla.1985).
The defendant has argued that if the two statutes are applied in reverse order, i.e. the weapon enhancement statute is applied first and the attempt statute second, that the result is a second degree felony classification. While this is mechanically true, the defendant’s argument is specious because the crime which was actually committed (in this case, attempted second degree murder) must be determined before any enhancement due to the use of a weapon can be applied.
Moreover, the defendant’s argument was recently rejected by the Fourth District in Harris v. State, 650 So. 2d 639 (Fla. 4th DCA 1995).
Finally, the judgment in this case erroneously indicates that the defendant was convicted of a violation of Florida Statutes section 782.04(1). The judgment should reflect a conviction of Florida Statutes section 782.04(2), not 782.04(1). We therefore remand for the sole purpose of correcting this clerical error. See Cook v. State, 632 So. 2d 86, 87 (Fla. 3d DCA 1994). The defendant need not be present when this correction is made. See Oliver v. State, 627 So. 2d 56, 57 (Fla. 2d DCA 1993).
Affirmed; remanded for the entry of a corrected judgment.
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Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997)…d-degree felony of attempted second-degree murder. Next, the enhancement statute is applied to reclassify the second-degree felony to a first-degree felony. Therefore, the offense was properly classified as a first-degree felony. See Baque v. State, 653 So. 2d 1105 (Fla. 3d DCA 1995). We observe that the trial court erroneously justi [*979] fied the classification by an analysis that relied on the facts adduced at the time the plea was entered rather than on the conviction actually obtained. Nevertheless, the…
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Gantorius v. State, 761 So. 2d 488 (Fla. 3d DCA 2000)…e appellant on the four attempted second degree murder counts. The appellant’s use of a firearm was used to enhance or reclassify each of these counts to a first degree felony pursuant to section 775.087(l)(b), Fla. Stat. (1991). See Baque v. State, 653 So. 2d 1105, 1106 (Fla. 3d DCA 1995); Harris v. State, 650 So. 2d 639, 641 (Fla. 4th DCA 1995). Consequently, the trial court resentenced the appellant on each of the four attempted second degree murder counts to 25 years each, concurrent with each other, but c…
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Paredes v. State, 760 So. 2d 167 (Fla. 3d DCA 2000)…(1993). We note that the offense of attempted second degree murder with a firearm is a first degree felony, which is punishable by a maximum term of thirty years imprisonment. See Myers v. State, 676 So. 2d 1063 (Fla. 2d DCA 1996); Baque v. State, 653 So. 2d 1105, 1106 (Fla. 3d DCA 1995); § 775.082(3)(b), Fla. Stat. (Supp.1994). Since the forty-year sentence on that count (count two) exceeds the legal maximum, we reverse the sentencing order on that count and remand with directions to reduce it to the legal…
Authorities Cited
- Miller v. State, 460 So. 2d 373 (Fla. 1984)
- Zeigler v. State, 647 So. 2d 272 (Fla. 4th DCA 1994)
- Cooper v. State, 455 So. 2d 588 (Fla. 1st DCA 1984)
- Davis v. State, 486 So. 2d 45 (Fla. 5th DCA 1986)
- Rigoberto Montoya v. State, 489 So. 2d 794 (Fla. 3d DCA 1986)
- Ucal Howe v. State, 596 So. 2d 1227 (Fla. 2d DCA 1992)
- Cook v. State, 632 So. 2d 86 (Fla. 3d DCA 1994)
- Fields v. City OF W. Palm Beach, 650 So. 2d 639 (Fla. 4th DCA 1995)
- Harris v. State, 650 So. 2d 639 (Fla. 4th DCA 1995)
- Helton v. State, 627 So. 2d 56 (Fla. 2d DCA 1993)