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Cerrato v. State

District Court of Appeal of Florida, Third District
Mar 5, 1991
576 So. 2d 351 (Fla. Dist. Ct. App. 1991)

Opinion

No. 90-1069.

March 5, 1991.

Appeal from the Circuit Court for Dade County, Henry L. Oppenborn and Phillip W. Knight, JJ.

Bennett H. Brummer, Public Defender, and Marti Rothenberg and Carol J.Y. Wilson, Asst. Public Defenders, for appellant.

Robert A. Butterworth, Atty. Gen., and Jorge Espinosa, Asst. Atty. Gen., for appellee.

Before HUBBART, NESBITT and JORGENSON, JJ.


We affirm the judgment of conviction for attempted second-degree murder. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). However, because the information did not charge the defendant with shooting the victim with a firearm, the trial court erred in reclassifying the offense from a second-degree felony to a first-degree felony and in imposing a three-year mandatory minimum sentence. See Sullivan v. State, 562 So.2d 813 (Fla. 1st DCA 1990) (defendant's sentence could not be enhanced where information did not contain statutory elements necessary for enhancement); Cox v. State, 530 So.2d 464 (Fla. 5th DCA 1988) (enhancing offenses of battery on law enforcement officer to second-degree felonies and imposing three-year mandatory minimum sentence because of use of firearm was fundamental error, where defendant was not charged with possession of firearm under battery counts in information); Peck v. State, 425 So.2d 664 (Fla.2d DCA 1983) (in order to apply statutory three-year mandatory minimum, state must allege in the information and prove at trial that defendant possessed a firearm during commission of crime).

Accordingly, we affirm the judgment of conviction for attempted second-degree murder but reverse the sentence and remand for resentencing. On remand, the trial court must reclassify the offense to a second-degree felony and resentence the defendant under the guidelines using a new guidelines scoresheet.

Affirmed in part, reversed in part, and remanded with directions.


Summaries of

Cerrato v. State

District Court of Appeal of Florida, Third District
Mar 5, 1991
576 So. 2d 351 (Fla. Dist. Ct. App. 1991)
Case details for

Cerrato v. State

Case Details

Full title:BALMORY ANTONIO CERRATO, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Mar 5, 1991

Citations

576 So. 2d 351 (Fla. Dist. Ct. App. 1991)

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