Baity v. State

District Court of Appeal of Florida

Baity v. State

111 So. 3d 267, 2013 WL 1590256, 2013 Fla. App. LEXIS 5973

CourtDistrict Court of Appeal of Florida

DecidedApril 16, 2013

DocketNo. 1D11-4286

StatusPublished

This text of 111 So. 3d 267 (Baity v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baity v. State, 111 So. 3d 267, 2013 WL 1590256, 2013 Fla. App. LEXIS 5973 (Fla. Ct. App. 2013).

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Opinion

PER CURIAM.

We affirm appellant’s convictions and sentences without discussion. However, the trial court could not impose the additional surcharge of $20 pursuant to section 938.06(1), Florida Statutes (2009), because the court struck all fines imposed on appellant when it granted his rule 3.800(b)(2) motion. Sanders v. State, 101 So.3d 373, 376-77 (Fla. 1st DCA 2012). In addition, the trial court could not enhance appellant’s second-degree felony murder conviction to a life felony under section 775.087(1), Florida Statutes (2009), because use of a firearm was an essential element of the underlying felony of attempted armed robbery with a firearm. See Traylor v. State, 785 So.2d 1179 (Fla. 2000). Accordingly, we remand with directions that the trial court strike the additional $20 surcharge and correct the written judgment and sentence to reflect appellant’s second-degree felony murder conviction was for a first-degree felony punishable by life imprisonment.

AFFIRMED and REMANDED with directions.

BENTON, C.J., WOLF and SWANSON, JJ., concur.

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PER CURIAM.

We affirm appellant’s convictions and sentences without discussion. However, the trial court could not impose the additional surcharge of $20 pursuant to section 938.06(1), Florida Statutes (2009), because the court struck all fines imposed on appellant when it granted his rule 3.800(b)(2) motion. Sanders v. State, 101 So.3d 373, 376-77 (Fla. 1st DCA 2012). In addition, the trial court could not enhance appellant’s second-degree felony murder conviction to a life felony under section 775.087(1), Florida Statutes (2009), because use of a firearm was an essential element of the underlying felony of attempted armed robbery with a firearm. See Traylor v. State, 785 So.2d 1179 (Fla. 2000). Accordingly, we remand with directions that the trial court strike the additional $20 surcharge and correct the written judgment and sentence to reflect appellant’s second-degree felony murder conviction was for a first-degree felony punishable by life imprisonment.

AFFIRMED and REMANDED with directions.

BENTON, C.J., WOLF and SWANSON, JJ., concur.

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Bluebook (online)

111 So. 3d 267, 2013 WL 1590256, 2013 Fla. App. LEXIS 5973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baity-v-state-fladistctapp-2013.

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