PAUL BETTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Betty appeals the denial of his motion to correct an illegal sentence for attempted robbery with a deadly weapon. The court affirms the denial but clarifies that attempted robbery with a deadly weapon is a second-degree felony, not first-degree as stated in prior dicta, making his thirty-year sentence as a habitual offender legally permissible.
Betty's sentence is legal. Attempted robbery with a deadly weapon is a second-degree felony under section 777.04, not a first-degree felony as suggested by dicta in Major v. State. As a habitual offender convicted of a second-degree felony, Betty could be sentenced up to thirty years in prison, which his sentence does not exceed.
[1] Attempted robbery with a deadly weapon is a second-degree felony.
[2] The attempt to commit a first-degree felony is a second-degree felony.
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Join FLexlaw to unlock all legal intelligence“Contrary to what we said in Major, which was dicta and did not directly control the outcome of the case, this court, and other districts, have consistently ruled that attempted robbery with a deadly weapon is a second degree felony.”
The court's central holding correcting the misstatement in prior dicta and establishing the proper felony classification.
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Join FLexlaw to unlock all legal intelligencePaul Betty was convicted of attempted robbery with a deadly weapon and sentenced as a habitual felony offender to thirty years in prison. The State ar…
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Paul Betty appeals the denial of a rule 3.800(a) motion to correct an illegal *587sentence. We affirm the denial but for reasons different from those argued by the State and adopted by the trial court.1 We also write to correct a misstatement of law in Major v. State, 900 So.2d 759 (Fla. 4th DCA 2005), that has led to some confusion in this case.
Betty was convicted of attempted robbery with a deadly weapon and sentenced as a habitual felony offender to thirty years in prison. Citing Major, the State has argued that this offense is a first degree felony, and as a habitual offender, Betty could be sentenced up to life in prison.
Contrary to what we said in Major, which was dicta and did not directly control the outcome of the case, this court, and other districts, have consistently ruled that attempted robbery with a deadly weapon is a second degree felony. See Whidden v. State, 374 So.2d 543, 545 (Fla. 2d DCA 1979) (discussing the robbery statute and concluding that attempted robbery with a deadly weapon is a second degree felony as provided in the attempt statute, section 777.04); see also Williams v. State, 850 So.2d 656 (Fla. 1st DCA 2003) (citing Whidden and recognizing that attempted armed robbery is a second degree felony); Lopez v. State, 781 So.2d 473 (Fla. 3d DCA 2001) (recognizing that attempted robbery with a deadly weapon is a second degree felony); Westbrook v. State, 617 So.2d 782 (Fla. 4th DCA 1993) (directing the trial court to correct the judgment, which erroneously stated that attempted robbery with a deadly weapon was a first degree felony, when it is a second degree felony); Arthur v. State, 391 So.2d 338 (Fla. 4th DCA 1980) (citing Whidden and agreeing that attempted robbery with a firearm is a second degree felony). Robbery with a deadly weapon is a first degree felony punishable up to life in prison. § 812.13(2)(a), Fla. Stat. (1989). The attempt to commit a life felony or first degree felony is a felony of the second degree. § 777.04(4)(b), Fla. Stat. (1989).2
Betty was convicted of a second degree felony, and as a habitual offender, he could be sentenced up to thirty years in prison. § 775.084(4)(a)2., Fla. Stat. (1989). Because his sentence is legal, we affirm the denial of his motion.
Ajfmned.
GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.
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Citator
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Zeman v. State, 46 So. 3d 162 (Fla. 4th DCA 2010)…the attempted robbery with a firearm and aggravated assault with a firearm charges. We agree in part. Attempted robbery with a firearm is a second degree felony, with a maximum penalty of fifteen years. § 775.082, Fla. Stat. (2005); Betty v. State, 7 So. 3d 586, 587 (Fla. 4th DCA 2009). However, the trial court sentenced the defendant to thir [*163] ty years as if the charge was a first degree felony. The State acknowledges this error. We therefore reverse this sentence and remand the case to the trial cou…
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Safeco Ins. Co. of Ill., Inc. v. Heikka (Fla. 4th DCA 2020)
Authorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Whidden v. State, 374 So. 2d 543 (Fla. 2d DCA 1979)
- Williams v. State, 850 So. 2d 656 (Fla. 1st DCA 2003)
- Arthur v. State, 391 So. 2d 338 (Fla. 4th DCA 1980)
- Westbrook v. State, 617 So. 2d 782 (Fla. 4th DCA 1993)
- Lark v. State, 617 So. 2d 782 (Fla. 1st DCA 1993)
- Lopez v. State, 781 So. 2d 473 (Fla. 3d DCA 2001)
- Rayfield Major v. State, 900 So. 2d 759 (Fla. 4th DCA 2005)