TONY BROWN A/K/A ANDRE GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the conviction for attempted battery on a law enforcement officer should be reduced to a misdemeanor, and that a factual inquiry is needed regarding consecutive mandatory minimum sentences for firearm use.
Defendant was convicted of attempted battery on a law enforcement officer and received mandatory minimum sentences for firearm use. He sought postconv…
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On Rehearing Granted
PER CURIAM.
On consideration of appellant’s motion for rehearing, we withdraw the opinion dated August 1, 2001, and substitute the following opinion.
Tony Brown appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
In count five of circuit court case number 96-19731, defendant was adjudicated guilty (after trial) of the offense of attempted battery on a law enforcement officer in violation of section 784.07, Florida Statutes (1995), a felony. The State concedes that under Merritt v. State, 712 So. 2d 384 (Fla.1998), section 784.07 does not apply to attempted battery. Id. at 385. On this issue, we remand with directions to reduce the conviction on count five to attempted battery, a misdemeanor. In defendant’s second claim, he contends that his two consecutive three-year mandatory minimum sentences for use of a firearm should be concurrent, not consecutive. This claim involves a factual inquiry. See Marta-Rodriguez v. State, 699 So. 2d 1010, 1012 (Fla.1997). Since the record does not conclusively refute this claim, we remand for a hearing on this issue. See Fla. R.App. P. 9.141(b)(2)(D).
We reject defendant’s third claim on authority of McKnight v. State, 773 So. 2d 577 (Fla. 3d DCA 2000).
In defendant’s final claim, he contends that the trial court erred by awarding him credit for 578 days of time served on all counts, including misdemeanor counts. He reasons that 578 days exceeds the legal maximum on the misdemeanor counts. Since we are remanding for other reasons, the trial court should correct the order on remand.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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J.J. v. State, 76 So. 3d 413 (Fla. 3d DCA 2012)…w enforcement officer and withholding adjudication. Upon the State’s proper confession of error, and on the binding authority of Merritt v. State, 712 So. 2d 384, 385 (Fla.1998); J.S. v. State, 925 So. 2d 438 (Fla. 5th DCA 2006); and Brown v. State, 798 So. 2d 827 (Fla. 3d DCA 2001), we reverse and remand with instructions to vacate the order of delinquency for attempted battery on a law enforcement officer and to issue an order finding J.J. delinquent as to attempted battery, a second degree misdemeanor. Sec…
Authorities Cited
- Merritt v. State, 712 So. 2d 384 (Fla. 1998)
- State v. Frye, 699 So. 2d 1010 (Fla. 1997)
- Moment v. State, 773 So. 2d 577 (Fla. 4th DCA 2000)
- McKNIGHT v. State, 773 So. 2d 577 (Fla. 3d DCA 2000)