Opinion
No. KK-266.
March 6, 1979. Rehearing Denied April 18, 1979.
Appeal from the Circuit Court, Alachua County, John J. Crews, J.
Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
McQuay was convicted of attempted burglary, possession of burglary tools, and three counts of battery upon a law enforcement officer. McQuay's sole contention on appeal is that the seven year sentence imposed for attempted burglary is excessive and illegal. We agree and reverse that sentence. An attempt to commit a burglary of any degree constitutes a third degree felony punishable by a term of imprisonment not exceeding five years. Sections 777.04(4)(c), 810.02 and 775.082(3)(d), Florida Statutes (1977); Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977), cert. den. 354 So.2d 983 (Fla. 1977).
Therefore, the sentence imposed for attempted burglary is vacated and the cause is remanded for proper sentencing. McQuay need not be present for this purpose.
McCORD, C.J., and ERVIN and BOOTH, JJ., concur.