5D07-4359 Dave Brown v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-4359

Case Date: 06/02/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

DAVE BROWN, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed June 6, 2008 3.850 Appeal from the Circuit Court for Orange County, Julie H. O'Kane, Judge. Dave Brown, South Bay, pro se. Bill McCollum, Attorney General, Tallahassee and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent. Case No. 5D07-4359

PER CURIAM. Dave Brown appeals the order denying his postconviction motion, which was filed pursuant to rule 3.850 or alternatively, rule 3.800(a), Florida Rules of Criminal Procedure. Brown seeks correction of his sentence for attempted second-degree

murder with a firearm, which he claims exceeds the statutory maximum penalty. We agree and reverse. Brown was initially charged with attempted first-degree murder with a firearm. He went to trial, and the jury found him guilty of the lesser included offense of attempted second-degree murder with a firearm. The jury also found by special verdict that Brown

discharged a firearm during the course of the crime and, as a result of the discharge, great bodily harm was inflicted on the victim. He received a split sentence of 35 years' incarceration with a 25-year minimum mandatory term pursuant to section 775.087(2), Florida Statutes (2001) (the 10-20-life statute), and 10 years of probation. Brown's conviction was reclassified from a second-degree felony to a first-degree felony as a result of the firearm element, pursuant to section 775.087(1), Florida Statutes (2001). Brown asserts that his split sentence of 35 years' incarceration

followed by 10 years of probation exceeds the statutory maximum penalty of 30 years' incarceration for a first-degree felony. See

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