Roberts v. State

599 So. 2d 751, 1992 Fla. App. LEXIS 5828, 1992 WL 115791

Opinion

ON MOTION FOR POST-TRIAL RELEASE

PER CURIAM.

We have for review the trial court’s order denying George Roberts post-trial release. We have jurisdiction pursuant to rule 9.140(e)(4), Florida Rules of Appellate Procedure.

The jury convicted Roberts of attempted second degree murder, a second degree felony. See § 777.04(4)(b), Fla.Stat. (1989). The trial court reclassified his crime to a first degree felony pursuant to section 775.087(l)(b), Florida Statutes (1989) and denied his motion for bail pending appeal pursuant to section 903.133, Florida Statutes (1989). Section 903.133 provides:

Notwithstanding the provisions of s. 903.132, no person adjudged guilty of a felony of the first degree for a violation of s. 782.04(2) or (3), s. 787.01, s. 794.-011(4), s. 806.01, s. 893.13, or s. 893.135, or adjudged guilty of a violation of s. 794.011(2) or (3), shall be admitted to bail pending review either by posttrial motion or appeal.

We hold that section 903.133 only applies to those crimes specifically listed therein. Since attempted second degree murder, with or without a firearm, does not fall within the list of enumerated crimes, section 903.133 does not apply sub judice.

Therefore, we grant Roberts’ motion for review of an order denying post-trial release and direct the trial court on remand to reconsider his motion for bail pending appeal pursuant to rule 3.691(a), Florida Rules of Criminal Procedure.¹

MOTION GRANTED.

LETTS, HERSEY and DELL, JJ., concur.

1 . We find it unnecessary to address Roberts’ argument that the trial court erred when it reclassified his crime to a first degree felony pursuant to § 775.087(l)(b).