WILLIAM DEAN PINKERTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Dean Pinkerton was convicted of third degree murder with a deadly weapon in the death of his wife. The trial court reclassified the crime from a second degree to a first degree felony based on the use of a deadly weapon, but the appellate court vacated the sentence, holding that reclassification was improper because the weapon use was an essential element of the underlying aggravated battery crime.
The court held that reclassification under section 775.087(1)(b) is improper when the use of a weapon is an essential element of the underlying crime. Because the jury specifically found that Pinkerton committed aggravated battery by using a deadly weapon, the weapon use was an essential element of the crime, and therefore reclassification was prohibited by the statute's exemption for crimes in which weapon use is an essential element.
[1] A felony may not be reclassified to a higher degree under Florida Statute section 775.087(1) if the use of a weapon is an essential element of the underlying felony.
[2] Aggravated battery, as defined by Florida Statute section 784.045(1)(b), includes the use of a deadly weapon, making weapon use an essential element of that offense.
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Join FLexlaw to unlock all legal intelligence“Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (b) in the case of a felony of the second degree, to a felony of the first degree.”
The statutory provision at issue that allows reclassification but contains an exception for felonies where weapon use is an essential element
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Join FLexlaw to unlock all legal intelligencePinkerton was indicted for first degree murder for slitting his wife's throat with a knife. The jury convicted him of the lesser included offense of t…
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ORFINGER, Judge.
Appellant was charged by indictment with first degree murder in the death of his wife, in that he “did kill and murder Joy Pinkerton by slitting the victim’s throat with a knife.” The jury found appellant “Guilty of the lesser included offense of Third Degree Murder With A Deadly Weapon in violation of F.S. 782.04(4).”
The court had instructed the jury that a finding of guilt on the lesser offense of third degree murder could be made only in the event that “the death occurred as a consequence of and while [defendant] was engaged in the commission of aggravated battery.” 1 Because the jury had specifi cally found that defendant had used a deadly weapon in the commission of the crime, see State v. Overfelt, 457 So. 2d 1385 (Fla.1984), the trial court reclassified the crime from a felony of the second degree to a felony of the first degree on the basis of section 775.087(l)(b), Florida Statutes (1987), which provides:
Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
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(b) in the case of a felony of the second degree, to a felony of the first degree. [Emphasis added].
Defendant contends this statute does not permit reclassification, because the use of the weapon is an essential element of the underlying felony of aggravated battery, relying on Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1981). We agree and vacate the sentence.
An essential element of the third degree murder conviction here was the crime of the aggravated battery. Aggravated battery is a battery in the commission of which a person (a) intentionally or knowingly causes great bodily harm, permanent disability or permanent disfigurement, or (b) uses a deadly weapon. § 784.045(1), Fla.Stat. (1987). While it is true that an aggravated battery may be committed without the use of a deadly weapon, in this case the jury specifically found that defendant had committed the aggravated battery under subsection (b) of the statute, i.e., while using a deadly weapon. Therefore, the deadly weapon was an essential element of the underlying crime of aggravated battery, and reclassification was improper under the section of the statute which exempts from its operation a felony in which the use of a weapon is an essential element. Bell, supra; accord Griffin v. State, 509 So. 2d 980 (Fla. 2d DCA 1987). See also Webb v. State, 410 So. 2d 944 (Fla. 1st DCA), review denied, 421 So. 2d 68 (Fla.1982). But see Pedrera v. State, 401 So. 2d 823 (Fla. 3d DCA 1981).
We vacate the sentence and remand the case for resentencing as a second degree felony.
Sentence VACATED. REMANDED.
COBB and COWART, JJ., concur. COWART, J., did not participate in oral argument.
. Section 782.04(4), Florida Statutes (1987) is one section of the felony murder statute which proscribes the unlawful killing of a human being without any design to effect death by a person engaged in the perpetration or attempt to perpetrate certain felonies, one of which is the felony of aggravated battery.
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Traylor v. State, 785 So. 2d 1179 (Fla. 2000)…v. State, 569 So. 2d 782, 784-85 (Fla. 4th DCA 1990) (Anstead, 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 atte…
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Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994)…n when its use is an essential element of the crime charged. 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…
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Gonzalez v. State, 569 So. 2d 782 (Fla. 4th DCA 1990)…n Vause v. State, 424 So. 2d 52 (Fla. 1st DCA 1982). Although reversed on other grounds, the supreme court approved the First District’s opinion as it related to the instant issue in Vause v. State, 476 So. 2d 141 (Fla.1985). In Pinkerton v. State, 534 So. 2d 425 (Fla. 5th DCA 1988), the Fifth District similarly disapproved enhancement in a third degree murder case where aggravated battery was the underlying felony: “While it is true that an aggravated battery may be committed without use of a deadly weapon…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1981)
- Mallory Webb, III v. State, 410 So. 2d 944 (Fla. 1st DCA 1982)
- Pedrera v. State, 401 So. 2d 823 (Fla. 3d DCA 1981)
- Andra Lavon Griffin v. State, 509 So. 2d 980 (Fla. 2d DCA 1987)