MALLORY WEBB, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the enhanced sentencing statute is inapplicable when the use of a weapon or firearm is an essential element of the underlying felony offense for felony murder.
Appellant was convicted of third-degree felony murder, and the sentence was enhanced under § 775.087(1), Florida Statutes. The underlying felony was a…
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WENTWORTH, Judge.
Appellant seeks review of a judgment of conviction of third degree felony murder and a sentence which was enhanced pursuant to § 775.087(1), Florida Statutes. We affirm the judgment of conviction, but reverse the enhanced sentence since § 775.-087(1) is. expressly inapplicable when “the use of a weapon or firearm is an essential element” of the substantive offense.
Although the use of a weapon is not an essential element of the substantive offense of felony murder in all cases, it is an essential element of the felony murder offense charged and proved in this case. Appellant’s conviction was predicated upon an underlying felony of either aggravated assault or aggravated battery,1 established by proof of an assault/battery involving the use of a firearm. See §§ 784.021(1)(a) and 784.045(1)(b), Florida Statutes. The use of a weapon or a firearm is an essential element of both of these offenses; such an aggravated assault/battery is already an “enhanced penalty offense, and § 775.087(1) may not be applied to enhance the sentence for these offenses. See Knight v. State, 374 So. 2d 1065 (Fla.3d DCA 1979), fn. 2, and Williams v. State, 358 So. 2d 187 (Fla. 4th DCA 1978). Since it was necessary to prove such an aggravated assault/battery in order to establish the felony murder in this case, the elements of the underlying offense were essential to this felony murder conviction, and § 775.087(1) is therefore inapplicable. See Harper v. State, 386 So. 2d 808 (Fla. 1st DCA 1980) (concurring opinion).
Accordingly, appellant’s sentence is vacated and the cause remanded for resen-fencing.
ERVIN and JOANOS, JJ., concur. . The jury was instructed that the possible underlying felonies were aggravated assault, to wit: assault with a deadly weapon, and aggravated battery, to wit: battery involving the use of a deadly weapon. The deadly weapon referred to was appellant’s firearm.
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Cuthbert v. State, 459 So. 2d 1098 (Fla. 1st DCA 1984)…s for scoring the primary offense in the appropriate category. Such reliance was misplaced. Section 775.-084 only authorizes the imposition of sentences which exceed the normal statutory maximum. The crimes are not reclassified.2 See Webb v. State, 410 So. 2d 944 [*1100] (Fla. 1st DCA 1982); Williams v. State, 358 So. 2d 187 (Fla. 4th DCA 1978).3 Next, the state argues that even if the primary offense (aggravated battery) could not be reclassified under the habitual offender law, it could be so reclassified…
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Traylor v. State, 785 So. 2d 1179 (Fla. 2000)…nstead, J., concurring in part and dissenting in part)); Roulhac v. State, 648 So. 2d 203, 204 (Fla. 1st DCA 1994); Wallace v. State, 665 So. 2d 313, 314 (Fla. 2d DCA 1995); Pinkerton v. State, 534 So. 2d 425, 426 (Fla. 5th DCA 1988); Webb v. State, 410 So. 2d 944, 945 (Fla. 1st DCA 1982). Since Traylor’s burglary charge resulted in a non-felony conviction of trespass, then, by elimination, it is reasonable to conclude that the underlying felony was attempted sexual battery, which was charged and found by the…
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Watson v. State, 591 So. 2d 951 (Fla. 2d DCA 1991)…s, uses, threatens, or attempts to use any weapon or firearm” during the commission of the felony. That section only permits the enhancement of the sentence when the use of a firearm is not an essential element of the offense charged. Webb v. State, 410 So. 2d 944 (Fla. 1st DCA), review denied, 421 So. 2d 68 (Fla.1982); Williams v. State, 358 So. 2d 187 (Fla. 4th DCA 1978). It is clear that the use of a firearm is an essential element of the offense charged in this case. The information alleged that the appe…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Miami Beach v. Sargeant, 358 So. 2d 187 (Fla. 3d DCA 1978)
- Gans v. Tarlton, 374 So. 2d 1065 (Fla. 3d DCA 1979)
- Stanford Legray Knight v. State, 374 So. 2d 1065 (Fla. 3d DCA 1979)
- Harper v. State, 386 So. 2d 808 (Fla. 1st DCA 1980)