Newbold v. State

831 So. 2d 264, 2002 Fla. App. LEXIS 17780, 2002 WL 31696799

Opinion

PER CURIAM.

The appellant challenges the trial court’s order summarily denying his rule 3.800(a) motion, in which he alleged that his sentence exceeded the statutory maximum for the charged crime. The appellant alleges that he was convicted of attempted first-degree felony murder with an underlying offense of aggravated battery with a firearm. The essential elements of attempted felony murder include the elements of the actual underlying felony. Traylor v. State, 785 So.2d 1179 (Fla.2001). Therefore, if the use of a firearm was an essential element of the appellant’s aggravated battery conviction, then it was an essential element of his attempted first-degree felony murder conviction. Because the trial court did not refute this claim with record attachments, the trial court’s summary denial of the appellant’s motion to correct his illegal sentence is reversed and remanded for record attachments that conclusively refute his claim, or for resentencing without the enhancement.

REVERSED and REMANDED.

WEBSTER, DAVIS and VAN NORTWICK, JJ., CONCUR.