Opinion
Case No. 96-107
Opinion filed July 16, 1997.
An appeal under Fla. R. App. P. 9.140(i)from the Circuit Court for Dade County, Leslie B. Rothenberg, Judge.
Bennett H. Brummer, Public Defender, and Suzanne M. Froix, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellee.
Before COPE and GERSTEN, JJ., and BARKDULL, Senior Judge.
On Motion for Rehearing
On consideration of appellant's motion for rehearing, we withdraw the court's previous opinion and issue the following opinion in its stead:
Pauline Phillips appeals the trial court's order denying her motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Defendant-appellant's principal issue is foreclosed by the Florida Supreme Court's recent decision in State v. Woodley, 22 Fla. L. Weekly S174 (Fla. April 3, 1997).
We remand for correction of the judgment to reflect that the offense of attempted first degree murder is a first degree felony, rather than a life felony. However, the offense was correctly scored on the scoresheet and consequently there is no scoring error on this count.
By motion for rehearing, defendant argues that the offense of conspiracy to traffic in cocaine should have been classified as a second degree felony instead of a first degree felony. See State v. Lee, 647 So.2d 810, 810-12 (Fla. 1994). In the trial court, defendant took the position that this offense had been properly classified as a first degree felony. Since defendant's argument on this issue was not raised in the trial court, we do not reach it on this appeal. See Nichols v. State, 22 Fla. L. Weekly D1366 (Fla. 3d DCA June 4, 1997). Our affirmance is without prejudice to defendant to present this issue to the trial court by another motion for postconviction relief. We express no opinion on the merits.
Affirmed; remanded for correction of judgment.