Opinion
Case No. 2D01-2032
Opinion filed September 21, 2001.
Appeal pursuant to Fla.R.App.P.9.141(b)(2) from the Circuit Court for Polk County; Charles Lee Brown, Judge.
Herbert L. Ghent appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Ghent makes four claims. We affirm three of the claims without comment, but we reverse the first claim.
Although the claim is inartfully drafted, Ghent appears to allege that his sentences on two counts of attempted first-degree murder and one count of armed robbery are illegal because the convictions were improperly enhanced from first-degree felonies to life felonies for use of a firearm or weapon under section 775.087(1), Florida Statutes (1983). In Traylor v. State, 785 So.2d 1179, 1181 (Fla. 2000), reh'g denied, 26 Fla. L. Weekly S357 (Fla. May 17, 2001), the supreme court held that enhancement for use of a firearm is improper on a conviction for attempted first-degree felony murder where an essential element of the underlying felony is the use of a firearm. See also Brown v. State, 458 So.2d 313, 314 (Fla. 5th DCA 1984) (holding that armed robbery cannot be enhanced under section 775.087(1), Florida Statutes (1981), because under the robbery statute it is already an enhanced charge due to the use or display of a weapon).
The trial court did not address this claim, and nothing in the record refutes it. Therefore, we reverse and remand for the trial court either to attach that portion of the record which conclusively refutes Ghent's claim or to resentence Ghent.
Affirmed in part, reversed in part, and remanded.
PARKER, A.C.J., and WHATLEY, J., Concur.