Rivera v. State

718 So. 2d 285, 1998 Fla. App. LEXIS 11442, 1998 WL 567943

Opinion

KLEIN, Judge.

Defendant appeals convictions for attempted second degree murder and aggravated battery. The trial court enhanced the conviction of attempted second degree murder from a second degree felony to a first degree felony because of the use of a deadly weapon. The state concedes error because there was no express finding by the jury that the defendant had used a deadly weapon. Therefore, we must, as we did in King v. State, 705 So.2d 668 (Fla. 4th DCA 1998), reverse for resentencing.

Appellant argues that we should direct the trial court to sentence for the attempted second degree murder conviction as a level eight offense because of dicta in Roberts v. State, 694 So.2d 825 (Fla. 2d DCA 1997). We disagree with that dicta. Second degree murder is a level ten offense. §§ 782.04(2), 921.0012, Fla. Stat. (1995). For purposes of sentencing, an attempt is ranked one level below the offense attempted. § 777.04(4)(a), Fla. Stat. (1995).

Reversed.

DELL and WARNER, JJ., concur.