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696 So. 2d 545

Phillips v. State

District Court of Appeal of Florida · decided 1997-07-16

Relies on 695 So. 2d 297 - State v. Woodley · 647 So. 2d 810 - State v. Lee · Nichols v. State

Decided 1997-07-16

¶1 On Motion for Rehearing

PER CURIAM.

¶2On consideration of appellant’s motion for rehearing, we withdraw the court’s previous opinion and issue the following opinion in its stead:

¶3Pauline Phillips appeals the trial court’s order denying her motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Defendant-appellant’s principal issue is foreclosed by the Florida Supreme Court’s recent decision in State v. Woodley, 695 So.2d 297 (Fla.1997).

¶4We remand for correction of the judgment to reflect that the offense of attempted first degree murder is a first degree felony, rather than a life felony. However, the offense was correctly scored on the seoresheet and consequently there is no scoring error on this count.

¶5By motion for rehearing, defendant argues that the offense of conspiracy to traffic in cocaine should have been classified as a second degree felony instead of a first degree felony. See State v. Lee, 647 So.2d 810, 810-12 (Fla.1994). In the trial court, defendant took the position that this offense had been properly classified as a first degree felony. Since defendant’s argument on this issue was not raised in the trial court, we do not reach it on this appeal. See Nichols v. State, 693 So.2d 725 (Fla. 3d DCA 1997). Our affir-mance is without prejudice to defendant to present this issue to the trial court by another motion for postconvietion relief. We express no opinion on the merits.

¶6Affirmed; remanded for correction of judgment.

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