Nelson v. State

Full title: HAROLD NELSON, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Mar 5, 1991

575 So. 2d 754 (Fla. Dist. Ct. App. 1991)

Opinion

No. 90-1440.

March 5, 1991.

An Appeal from the Circuit Court for Dade County, Martin Kahn, Judge.

Bennett H. Brummer, Public Defender and Louis Campbell, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.

Before NESBITT, BASKIN and JORGENSON, JJ.

PER CURIAM.

We affirm the judgment of conviction of attempted armed robbery with a firearm, §§ 812.13(2); 777.04(4)(a), Fla. Stat. (1989), finding the claims raised are without merit.

However, we vacate the defendant's sentence since his conviction was impermissibly enhanced to a first-degree felony. See Williams v. State, 537 So.2d 195 (Fla.2d DCA 1989); Lee v. State, 400 So.2d 1238 (Fla. 1st DCA 1981); § 775.087, Fla. Stat. (1989). Upon remand, defendant's offense shall be scored as a second-degree felony for purposes of resentencing.

Conviction affirmed; sentence vacated, and cause remanded for resentencing.