Jenkins v. State

826 So. 2d 459, 2002 Fla. App. LEXIS 13205, 2002 WL 31027077

Opinion

PER CURIAM.

The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. The appellant claims he was convicted of attempted second-degree murder without a weapon, and his sentence was enhanced to a life felony

pursuant to section 775.087(1), Florida Statutes (1997). In order to enhance a defendant’s sentence pursuant to section 775.087(1), Florida Statutes, there must be a finding that the defendant committed the crime while using a firearm. See Tucker v. State, 726 So.2d 768 (Fla.1999). Because the trial court did not refute this claim with record attachments, the trial court’s summary denial of the appellant’s claim that his life sentence for attempted second-degree murder is an illegal sentence is reversed and remanded for record attachments that conclusively refute his claim, or for further proceedings.

AFFIRMED IN PART and REVERSED IN PART.

DAVIS, BENTON and POLSTON, JJ., concur.