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Badia v. State

District Court of Appeal of Florida, Third District
Nov 8, 2000
770 So. 2d 300 (Fla. Dist. Ct. App. 2000)

Opinion

No. 3D99-1716.

Opinion filed November 8, 2000.

An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley, Judge, Lower Tribunal No. 96-28930.

Affirmed in part, reversed in part, and remanded.

Clayton R. Kaeiser, for appellant.

Robert A. Butterworth, Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.

Before GERSTEN, FLETCHER, and RAMIREZ, JJ.


Appellant, Manuel M. Badia, challenges his convictions and sentences for second-degree murder, possession of a firearm by a convicted felon, and attempted second-degree murder of another victim. He was sentenced to forty years in prison with a three-year mandatory minimum component on the second-degree murder conviction, forty years with a three-year mandatory minimum component on the attempted second-degree murder conviction, and fifteen years on the possession charge, all sentences to run concurrently. Badia argues that he cannot be convicted of attempted second-degree murder as that is a non-existent crime, citing Brown v. State, 733 So.2d 598 (Fla. 5th DCA 1999), review granted, 744 So.2d 452 (Fla. 1999). The Florida Supreme Court and this Court have resolved this issue adversely to Badia's contentions. See Brown v. State, 25 Fla. L. Weekly S792 (Fla. Oct. 5, 2000); Rivero v. State, 752 So.2d 1244 (Fla. 3d DCA 2000). Therefore, we affirm the attempted second-degree murder conviction.

The state, however, concedes error on Badia's alternative position that the sentence he received for the attempted second-degree murder conviction was illegal. The state acknowledges that attempted second-degree murder is a felony of the second degree, which can be reclassified upward to a felony of the first degree punishable for a maximum of thirty-years imprisonment. We therefore reverse the forty-year sentence imposed by the trial court on the attempted murder conviction and remand for resentencing on that conviction only. The other points raised by Badia are without merit.


Summaries of

Badia v. State

District Court of Appeal of Florida, Third District
Nov 8, 2000
770 So. 2d 300 (Fla. Dist. Ct. App. 2000)
Case details for

Badia v. State

Case Details

Full title:MANUEL M. BADIA, Appellant, v. THE STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Third District

Date published: Nov 8, 2000

Citations

770 So. 2d 300 (Fla. Dist. Ct. App. 2000)

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