LEROY R. GADSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Leroy Gadson petitioned for habeas corpus, claiming his appellate counsel was ineffective for failing to challenge an illegal sentence. The court granted the petition on one claim, finding that the trial court erroneously classified attempted robbery as a first-degree felony instead of a second-degree felony, resulting in an excessive 30-year sentence when the maximum should have been 15 years.
Appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion challenging the illegal sentence. The trial court erred in designating Gadson's attempted robbery conviction as a first-degree felony rather than a second-degree felony, and the 30-year sentence exceeded the statutory maximum of 15 years.
[1] An attempt to commit robbery with a deadly weapon is reclassified as a second-degree felony for sentencing purposes.
[2] A conviction for an attempt to commit a life felony or a first-degree felony is reclassified as a second-degree felony.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Robbery with a deadly weapon is a first-degree felony punishable by a life sentence, but an attempt to commit that offense is reclassified as a second-degree felony carrying a maximum penalty of 15 years in the Department of Corrections.”
Establishes the legal classification of attempted robbery and the applicable maximum sentence.
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Join FLexlaw to unlock all legal intelligenceGadson was convicted of attempted robbery with a deadly weapon. At sentencing, the trial court incorrectly classified the conviction as a first-degree…
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Leroy R. Gadson petitions this court for a writ of habeas corpus, asserting six claims of ineffective assistance of appellate counsel. One claim merits relief. Specifically, Gadson argues that his appellate counsel was ineffective for failing to file a motion, pursuant to Florida Rule of Criminal Procedure 3.800(b), to correct a sentencing error in connection with his 30-year sentence for attempted robbery with a deadly weapon. We agree.
Gadson was convicted of committing an attempted robbery with a deadly weapon. During sentencing, the trial court incorrectly determined that the conviction was a first-degree felony and, as a result, sentenced Gadson to 30 years in the Department of Corrections.
Robbery with a deadly weapon is a first-degree felony punishable by a life sentence, but an attempt to commit that offense is reclassified as a second-degree felony carrying a maximum penalty of 15 years in the Department of Corrections. Johnson v. State, 44 So.3d 209 (Fla. 5th DCA 2010). Although a first-degree felony punishable by life is punishable by a potentially longer sentence then a standard first-degree felony, for the purpose of sentencing it does not constitute a separate classification of offenses, wholly dis*721tinct from standard first-degree felonies. See § 775.081(1), Fla. Stat. (2010) (providing that felonies are classified into the following categories: (a) capital felony; (b) life felony; (c) first-degree felony; (d) second-degree felony; and (e) third-degree felony). Section 777.04(4)(c) specifically provides that convictions for an attempt to commit a life-felony or a first-degree felony are reclassified as second-degree felonies. Therefore, the trial court erred in designating Gadson’s conviction as being a first-degree felony and imposing a 30-year sentence.
Had appellate counsel filed a rule 3.800(b)(2) motion alleging an illegal sentence, either the trial court would have granted the motion and corrected the sentence or the issue would have been preserved for appellate review and this court would have vacated the illegal sentence and remanded for re-sentencing. As such, counsel’s failure to file a rule 3.800 motion constituted ineffective assistance of counsel. Accordingly, we reverse Gadson’s 30-year sentence and remand for re-sentencing as well as for the correction of any errors in the written judgment misclassify-ing the attempted robbery offense as a first-degree felony. See Johnson v. Wainwright, 498 So.2d 938 (Fla.1986).
PETITION GRANTED in part; DENIED in part; and CAUSE remanded.
PALMER, COHEN, and BERGER JJ., concur.
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Citator
Authorities Cited
- Johnson v. Louie L. Wainwright, 498 So. 2d 938 (Fla. 1986)
- Cottengim v. State, 44 So. 3d 209 (Fla. 5th DCA 2010)
- Johnson v. State, 44 So. 3d 209 (Fla. 5th DCA 2010)