Efraimson v. State

830 So. 2d 189, 2002 Fla. App. LEXIS 15510, 2002 WL 31374847

• Court: District Court of Appeal of Florida
• Decided: October 23, 2002
• Docket: No. 4D02-1853
• Status: Published

Opinion

PER CURIAM.

Appellant, Andrew George Efraimson, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Efraimson alleges that his forty-year sentence for attempted first degree felony murder is illegal.¹ Efraimson argues that reclassification of his offense from a first degree felony to a life felony was not permitted as outlined by the supreme court in Traylor v. State, 785 So.2d 1179 (Fla.2000).

In Traylor, the supreme court held that enhancement for use of a firearm is improper on a conviction for attempted first degree felony murder where an essential element of the underlying felony is the use of a firearm. Reclassification in such instance is permissible so long as it can be determined that the attempted first degree murder was based on the jury finding premeditation, rather than a felony murder charge with a deadly weapon or firearm.

The record before this court reflects that the jury declined to find Efraimson guilty of premeditated attempted first degree murder. It further reflects that the underlying felony was attempted burglary with a firearm.

The trial court did not address Efraim-son’s claim on the merits. Therefore, we reverse and remand for the trial court either to attach that portion of the record which conclusively refutes Efraimson’s claim or to resentence him in light of Traylor. See also Ghent v. State, 795 So.2d 1083 (Fla. 2d DCA 2001).

POLEN, C.J., WARNER and STEVENSON, JJ., concur.

1 . At the time of his conviction, attempted felony murder was a crime in Florida. See State v. Gray, 654 So.2d 552 (Fla.1995).