ERNEST CHERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a scoresheet error resulting in a departure from sentencing guidelines does not require a contemporaneous objection if evident in the record, and that a conviction for possession of a firearm violates jeopardy clauses when it arises from the same actions as aggravated battery with a firearm.
Appellant was convicted of aggravated battery with a firearm and possession of a firearm during a felony. His conviction was reclassified as a first-d…
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RIVKIND, LEONARD, Associate Judge.
Appellant was convicted of aggravated battery with a firearm under count one and possession of a firearm while in the commission of a felony under count two. He was sentenced to five years’ imprisonment with a three-year minimum mandatory on each count to run concurrently.
Aggravated battery is defined as a second-degree felony.1 Appellant’s conviction was reclassified pursuant to section 775.-087(1)(b), Florida Statutes (1987), and was scored as a first-degree felony.: Defense counsel made no objection to the score-sheet.
Such enhancement is permissible under the statute but not where, as is the case here, the use of a weapon or firearm is an “essential element” of the felony-charged. Pinkerton v. State, 534 So. 2d 425 (Fla. 5th DCA 1988).
Scoresheet errors that are evident in the record, which also result in a departure from the sentencing guidelines, do not require a contemporaneous objection at trial to be preserved for appeal. Merchant v. State, 509 So. 2d 1101 (Fla.1987) (citing State v. Whitfield, 487 So. 2d 1045 (Fla.1986)).
Accordingly, we vacate the sentence below and remand this cause with directions to impose a sentence as a second-degree felony consistent with the guidelines.
Appellant’s possession of a firearm arose from the same actions upon which his conviction for aggravated battery with a firearm is based.2 We have therefore concluded that appellant’s conviction on count two violates the jeopardy clauses of the state and federal constitutions and must accordingly be set aside. Hall v. State, 517 So. 2d 678 (Fla.1988); Carawan v. State, 515 So. 2d 161 (Fla.1987); Hurd v. State, 536 So. 2d 361 (Fla. 3d DCA 1988).
Reversed and remanded with directions.
DOWNEY and ANSTEAD, JJ., concur. . § 784.045(2), Fla.Stat. (1987).
. The crime involved herein was committed on July 31, 1986, whereas the amendment to section 775.021(4) became effective July 1, 1988.
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Vickers v. State, 630 So. 2d 1229 (Fla. 2d DCA 1994)…hat a sentence cannot be enhanced for the use of a weapon 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…
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…Fla. 4th DCA 1989); Gunn v. State, 546 So. 2d 115 (Fla. 4th DCA 1989); Wright v. State, 546 So. 2d 96 (Fla. 4th DCA 1989); Mitchell v. State, 543 So. 2d 292 (Fla. 4th DCA 1989); Peterson v. State, 542 So. 2d 417 (Fla. 4th DCA 1989); Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989); Prescott v. State, 529 So. 2d 302 (Fla. 4th DCA 1988); Sapp v. State, 522 So. 2d 1006 (Fla. 4th DCA 1988). Reaching the conclusion that the defendant in this case cannot be convicted of both the underlying felony offense of agg…
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Gonzalez v. State, 569 So. 2d 782 (Fla. 4th DCA 1990)…f a weapon is an essential element under the aggravated battery offense set out in section 784.045(1)(b). This is true even though the offense of aggravated battery may be alleged and proven without involvement of a weapon. See also Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989); Costantino v. State, 521 So. 2d 338 (Fla. 4th DCA 1988). In other words, we have previously held that even though use of a weapon is not a necessary element in every aggravated battery case, when it is charged that way it is not…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Merchant v. State, 509 So. 2d 1101 (Fla. 1987)
- Pinkerton v. State, 534 So. 2d 425 (Fla. 5th DCA 1988)
- Hurd v. State, 536 So. 2d 361 (Fla. 3d DCA 1988)