Small v. State

428 So. 2d 337 | Fla. Dist. Ct. App. | 1983

SCHOONOVER, Judge.

The appellant, Michael Small, has appealed the judgments and sentences entered against him for attempted second degree murder, attempted armed robbery, and attempted kidnapping. We find that the trial court imposed illegal sentences upon the appellant in two of the three sentences entered, and accordingly, we reverse and remand for imposition of proper sentences.

The appellant has raised several arguments on appeal, but we only find merit in his contention that the trial court erred in sentencing him to serve a sixty year sentence for attempted second degree murder and another sixty year sentence for attempted kidnapping. We affirm in all other respects.

The appellant was charged by an information with attempted first degree murder, attempted armed robbery, and attempted kidnapping. The jury found him guilty of attempted second degree murder, attempted armed robbery, and attempted kidnapping. The written judgment entered by the trial court properly adjudicated the appellant guilty of attempted armed robbery and attempted kidnapping in accordance with the jury verdict. However, it incorrectly adjudicated him guilty of attempted first degree murder. The court found that the appellant was a habitual offender and sentenced him to imprisonment for sixty years on the charge of attempted murder, thirty years on the charge of attempted armed robbery, and sixty years on the charge of attempted kidnapping.

Attempted second degree murder and attempted kidnapping are felonies of the second degree under sections 782.04(2), 787.-01(2), and 777.04(4)(b), Florida Statutes (1981), and therefore, a maximum sentence of fifteen years may be imposed. However, pursuant to the habitual felony offender statute section 775.084(4)(a)(2), Florida Statutes (1981), the sentence may be enhanced to a maximum of thirty years. Since the appellant was sentenced to serve a term of sixty years for attempted second degree murder, and another sixty years for attempted kidnapping, the sentences were improper. Accordingly, the appellant’s sentences on these two charges are hereby vacated, and this cause is remanded for imposition of legal sentences on those charges. Furthermore, upon remand, the judgment adjudicating the appellant guilty of attempted first degree murder should be corrected so that it properly reflects the jury verdict of guilty of attempted second degree murder.

The trial court is affirmed in all other respects.

HOBSON, Acting C.J., and GRIMES, J., concur.