Perez v. State , 840 So. 2d 1179 ( 2003 )

840 So.2d 1179 (2003)

Nelson PEREZ, Appellant,
v.
STATE of Florida, Appellee.

No. 5D02-1862.

District Court of Appeal of Florida, Fifth District.

April 4, 2003.

James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

SHARP, W., J.

Perez appeals from the trial court's denial of his motion to correct his sentences, pursuant to Florida Rule of Criminal Procedure 3.800(a). After two re-sentencing procedures, one based on Heggs v. State, 759 So.2d 620 (Fla.2000), and the other based on the 1994 guidelines range, the trial court let stand concurrent fifteen year sentences for attempted second degree murder with a firearm,^[1] and armed robbery,^[2] followed by fifteen years probation, and fifteen years probation consecutive to the probation on the other counts for shooting into an occupied vehicle.^[3] Perez was also sentenced to a three year minimum mandatory term for use of a firearm on both the attempted murder and armed robbery counts. We find no error, although we remand for correction of the scoresheet.

The scoresheet used at sentencing indicated that the attempted murder count was scored as a Level 9 offense, with a sentencing range of 109.0 to 182.7 months incarceration. The state agrees this was error. Attempted second degree murder is a Level 8 offense. Saylor v. State, 816 So.2d 1254 (Fla. 5th DCA 2002); Galdamez v. State, 804 So.2d 619 (Fla. 3d DCA 2002). Nor is it subject to the one level increase for use of a firearm during the Heggs window period. See Salters v. State, 758 So.2d 667 (Fla.2000); Saylor.

However, scoring the attempted second degree murder as a Level 8 offense does not change the result in this case. The charge of armed robbery with a firearm becomes the primary offense because it is a Level 9 offense. Fla. R.Crim. P. 3.704(d)(7). Thus scoring the attempted murder count as a Level 8 offense deletes only 1.2 points from Perez's score, making his total sentencing points 173. That results in a guidelines maximum range of 181.25 months or 15.1 years incarceration. The 15 year prison sentence Perez received is therefore legal.

AFFIRMED; REMANDED for Correction of Scoresheet.

THOMPSON, C.J., and ORFINGER, J., concur.

NOTES

[1] § 782.04(1)(a)(1), Fla. Stat. (1995)

[2] § 812.13(2)(a), Fla. Stat. (1995).

[3] § 790.19, Fla. Stat. (1995).