A sentence exceeding thirty years for attempted second-degree murder is illegal because the offense is a second-degree felony reclassifiable to a first-degree felony with a thirty-year maximum.
The defendant appeals convictions for second-degree murder, possession of a firearm by a convicted felon, and attempted second-degree murder. The court first addresses the defendant's argument that attempted second-degree murder is a non-existent crime, rejecting it based on controlling precedent that recognizes the offense. The state then concedes that the trial court erred in imposing a forty-year sentence for the attempted second-degree murder conviction. The court applies the rule that attempted second-degree murder is a second-degree felony, which may be reclassified as a first-degree felony with a maximum penalty of thirty years. Consequently, the court affirms the convictions but reverses the illegal sentence on the attempted murder count and remands for resentencing on that specific conviction.
At page 300 cited at this page1 citing case
- Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005).publishedSee also Badia, 770 So.2d at 300 (court reversed a 40-year sentence for attempted second-degree murder and remanded for re-sentencing).
v.
The STATE of Florida, Appellee.
Clayton R. Kaeiser, Miami, for appellant.
Robert A. Butterworth, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
Before GERSTEN, FLETCHER, and RAMIREZ, JJ.
PER CURIAM.
Appellant, Manuel M. Badia, challenges his convictions and sentences for second-degree murder, possession of a firearm by a convicted felon, and attempted second-degree murder of another victim. He was sentenced to forty years in prison with a three-year mandatory minimum component on the second-degree murder conviction, forty years with a three-year mandatory minimum component on the attempted second-degree murder conviction, and fifteen years on the possession charge, all sentences to run concurrently. Badia argues that he cannot be convicted of attempted second-degree murder as that is a non-existent crime, citing Brown v. State, 733 So.2d 598 (Fla. 5th DCA 1999), review granted, 744 So.2d 452 (Fla. 1999). The Florida Supreme Court and this Court have resolved this issue adversely to Badia's contentions. See Brown v. State, 25 Fla. L. Weekly S792, ___ So.2d ___, 2000 WL 1472598 (Fla. Oct. 5, 2000); Rivero v. State, 752 So.2d 1244 (Fla. 3d DCA 2000). Therefore, we affirm the attempted second-degree murder conviction.
The state, however, concedes error on Badia's alternative position that the sentence he received for the attempted second-degree murder conviction was illegal. The state acknowledges that attempted second-degree murder is a felony of the second degree, which can be reclassified upward to a felony of the first degree punishable for a maximum of thirty-years imprisonment. We therefore reverse the forty-year sentence imposed by the trial court on the attempted murder conviction and remand for resentencing on that conviction only. The other points raised by Badia are without merit.
Affirmed in part, reversed in part, and remanded.