SAMMY STINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
Explore caselaw by topic → Browse Essential Element Of Offense cases and more on FLexlaw
PER CURIAM.
Appellant objects to two sentences of seven years each as being in excess of the statutory maximum of five years for third degree felonies. See Section 775.082(3)(d), Florida Statutes. The state in its answer brief acknowledges the sentencing error. We reverse.
Appellant was convicted of two counts of aggravated assault with a deadly weapon, a third degree felony. See Section 784.021, Florida Statutes. The offense for which appellant was convicted cannot he enhanced from a third degree felony to a second degree felony, under the theory that the firearm was used in the commission of the offense, because possession of a weapon is an essential element of aggravated assault with a deadly weapon. See Section 775.087(l)(c), Florida Statutes, and Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983).
The sentences in excess of the statutory maximum are reversed and on remand the trial court is directed to sentence the appellant to sentences not exceeding the statutory maximum for a third degree felony.
SMITH, C.J., and ERVIN and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994)…arged. See Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989), approved, Gonzalez v. State, 585 So. 2d 932 (Fla. 1991); Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989); Pinkerton v. State, 534 So. 2d 425 (Fla. 5th DCA 1988); Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988). A defendant cannot agree to an illegal sentence, therefore, we reverse and remand for the court to resentence Vickers within the fifteen year maximum sentence range or allow him to withdraw his plea and to proceed accordingly.…
-
Patterson v. State, 693 So. 2d 74 (Fla. 1st DCA 1997)…to a second-degree felony pursuant to section 775.087(1) because use of a firearm is an essential element of that offense. Harrelson v. State, 624 So. 2d 828 (Fla. 1st DCA 1993); Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989); Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988). Because the trial court did not attach portions of the record to the order denying relief, however, we cannot make this determination. Accordingly, we reverse the trial court’s denial of relief on this issue. The trial court w…
-
Tullis v. State, 692 So. 2d 229 (Fla. 1st DCA 1997)…m cannot be reclassified to a second degree felony because use of a firearm is an essential element of the offense. Harrelson v. State, 624 So. 2d 828 (Fla. 1st [*230] DCA 1993); Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989); Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988). Although appellant’s guidelines seoresheet shows that aggravated assault was calculated correctly as a third degree felony, the judgment reflects conviction of aggravated assault as a second degree felony, enhanced by section 77…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983)