FABRE v. STATE (1998)

Appellant Ovidio Fabre moves for rehearing of this Court's per curiam opinion filed May 6, 1998, which affirmed the lower court's order denying his motion for post-conviction relief under Fla.R.Crim.P. 3.850.   Appellant claims that his thirty-year sentence with the three year minimum mandatory provision for an attempted kidnapping conviction is illegal because it exceeds the statutory maximum for a second-degree felony where he was not charged with attempted armed kidnapping.

Appellant was indicted for first degree murder (later reduced to second-degree murder), attempted kidnapping, armed burglary and impersonating a police officer.   Appellant pled guilty to all four counts, and in accordance with his plea agreement with the State, the trial court entered adjudication and sentenced appellant to the following:  life imprisonment with a minimum mandatory of three years for the second degree murder with a firearm charge, thirty years imprisonment with a minimum mandatory of three years on the attempted kidnapping charge, life imprisonment with a minimum mandatory of three years on the armed burglary charge, and a one year sentence for falsely impersonating a police officer.

The State concedes that the thirty-year sentence on the attempted kidnapping charge exceeds the fifteen-year maximum for a second-degree felony and is illegal because appellant was not charged with attempted armed kidnapping.   Consequently, the State also concedes that the three-year minimum mandatory provision on the attempted kidnapping sentence is illegal because appellant was not charged with possessing a firearm.

Accordingly, we withdraw our previous opinion in this case, vacate the lower court's sentence for attempted kidnapping, including the three-year minimum mandatory provision, and remand the case to the circuit court for resentencing on that count only.

PER CURIAM.