Summary
affirming summary denial of motion for postconviction relief, challenging life sentence for attempted first degree murder, reclassified as life felony, as distinguished from Traylor where defendant did not allege state proceeded at trial on attempted felony murder theory and, at time of conviction, attempted felony murder was not a crime in Florida
Summary of this case from Mitchell v. StateOpinion
Case No. 4D01-2063
Opinion filed December 5, 2001
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 94-301 CF.
Carl Theolet, Jr., Century, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
Carl Theolet challenges his life sentence for attempted first-degree murder on the ground that it is an illegal enhancement. The trial court denied relief noting that Theolet was charged with attempted premeditated murder, a first-degree felony, re-classified as a life felony. Cf.Traylor v. State, 785 So.2d 1179 (Fla. 2000) (holding that conviction of attempted felony murder could not be re-classified from first-degree felony to life felony where use of weapon was an essential element of offense in felony murder charge). We affirm.
Theolet did not allege that the state proceeded at trial on an attempted felony murder theory. Moreover, at the time Theolet was convicted, attempted felony murder was not a crime in Florida.State v. Gray, 654 So.2d 552 (Fla. 1995).
STONE, WARNER, and SHAHOOD, JJ., concur.