4D08-397-Peter Jerome Cunningham v. State*

State: Florida

Court: Florida Southern District Court

Docket No: 4D08-397.op

Case Date: 11/04/2009

Plaintiff: 4D08-397-Peter Jerome Cunningham

Defendant: State*

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009

PETER JEROME CUNNINGHAM, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D08-397 [November 4, 2009] PER CURIAM. Appellant, Peter Cunningham, appeals his convictions for second degree murder with a firearm (count I) and two counts of attempted manslaughter with a firearm (counts II and III). We affirm without discussion Cunningham's convictions but remand for correction of the sentencing order. Cunningham was convicted of second degree murder with a firearm pursuant to section 782.04(2), Florida Statutes (2002). He was convicted of attempted manslaughter pursuant to sections 777.04 and 782.087, Florida Statutes (2002). The trial court sentenced Cunningham to life in prison on count I with a twenty-five-year mandatory minimum pursuant to section 775.087(2), Florida Statutes (2002). On counts II and III, Cunningham was sentenced to twenty years with a twenty-year minimum mandatory on each count, both to run concurrently with count I but consecutively with each other. After this appeal was filed, Cunningham filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). He argued that the trial court erred in imposing a minimum mandatory sentence under section 775.087(2) in counts II and III because that section provides for a minimum mandatory sentence only if the defendant is convicted of any one of the crimes listed in the statute. Neither manslaughter nor attempted manslaughter appears on the list. He also asserted that attempted manslaughter was a second degree felony punishable b y no more than fifteen years in prison. See

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