CARL PITTMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pittman was convicted of aggravated battery with a firearm (a lesser-included offense of attempted first-degree murder) and challenged his convictions and sentences on appeal. The Fourth District affirmed the convictions but reversed the sentences due to two sentencing errors: improper reclassification of the offense from second-degree to first-degree felony, and the trial court's failure to issue written reasons for departure from the sentencing guidelines at the time of sentencing.
The court held that reclassification of the aggravated battery with a firearm conviction under section 775.087(1)(b) was improper because use of a firearm is an essential element of the crime, making reclassification inappropriate. The court also held that a trial court must issue written reasons for departure from the sentencing guidelines at the time of sentencing, not at a later date, and the trial court's failure to do so constitutes reversible error.
[1] A conviction for aggravated battery with a firearm, where use of a firearm is an essential element, cannot be reclassified as a first-degree felony based on the use of a…
[2] A trial court must issue an order containing written reasons for departure from a guidelines sentence at the time of sentencing.
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Join FLexlaw to unlock all legal intelligence“It was impermissible to reclassify the offense in Count I from a second-degree felony to a first-degree felony. While appellant was charged with attempted first-degree murder, he was actually convicted of the lesser-included offense of aggravated battery with a firearm. Since use of a firearm is an essential element of this crime, reclassification under section 775.-087(1)(b), Florida Statutes (1987), was inappropriate.”
Establishes the court's holding that the firearm element being essential made statutory reclassification improper
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Join FLexlaw to unlock all legal intelligenceAppellant Pittman was charged with attempted first-degree murder in Count I. He was actually convicted of the lesser-included offense of aggravated ba…
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HERSEY, Chief Judge.
We affirm appellant’s convictions, finding no merit in any of the three points on appeal dealing with the trial phase of these proceedings. We reverse the sentences, however, and remand for resentencing based upon the following errors.
It was impermissible to reclassify the offense in Count I from a second-degree felony to a first-degree felony. While appellant was charged with attempted first-degree murder, he was actually convicted of the lesser-included offense of aggravated battery with a firearm. Since use of a firearm is an essential element of this crime, reclassification under section 775.-087(1)(b), Florida Statutes (1987), was inappropriate. See Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989). See also Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1981).
A trial court must issue an order containing written reasons for departure from a guidelines sentence at the time of sentencing. Ree v. State, 565 So. 2d 1329 (Fla.1990). A considerable period of time elapsed between the sentencing hearing and rendition of the departure order here. Thus, we are compelled to reverse and remand under Ree. We do not need to apply Ree retroactively to reach this result because this jurisdiction already had established the Ree rule almost two years before appellant’s sentencing hearing. See Ree v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987) (opinion quashed by the supreme court but rule reinforced). Therefore, the trial court’s failure to provide written reasons for departure at the time of sentencing constitutes reversible error. On remand, the trial court is directed to resentence appellant within the guidelines. See Pope v. State, 561 So. 2d 554 (Fla.1990).
Because we are required to reverse and remand for resentencing in any event, it would serve no useful purpose to treat collateral issues raised by appellant in connection with his original sentencing.
We affirm the convictions but reverse and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
ANSTEAD, J., concurs in part and dissents in part with opinion.
STONE, J., dissents in part and concurs in part with opinion.
ANSTEAD, Judge,
concurring in part and dissenting in part.
I agree with the conclusions reached in the majority opinion with the single exception that I would remand with directions that the burglary conviction be reduced to grand theft. See Dakes v. State, 545 So. 2d 939 (Fla. 3d DCA 1989).
STONE, Judge,
dissenting in part and concurring in part.
In my judgment, it was not error to enhance the aggravated battery sentence to a first degree felony where the offense was committed with a firearm. The purpose of inserting the firearm language into the verdict form was to establish a basis for enhancement. The defendant was not charged with aggravated battery in the information. Rather, he was charged with attempted first degree murder. He received the benefit of a conviction of the lesser offense. If Pittman had been con victed as charged, he would have faced an enhanced sentence because of the firearm. The jury and trial court should be permitted to impose the same enhancement for the lesser offense, particularly as a victim injury supports the conviction for aggravated battery.
In all other respects, I concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Rivas v. State, 591 So. 2d 649 (Fla. 4th DCA 1991)…g guidelines. See Ree v. State, 565 So. 2d 1329 (Fla.1990). Accordingly, we reverse the sentence imposed by the trial court and remand this case for sentencing within the guidelines. See Pope v. State, 561 So. 2d 554 (Fla.1990) and Pittman v. State, 572 So. 2d 29 (Fla. 4th DCA 1990). AFFIRMED IN PART; REVERSED IN PART and REMANDED. DELL, GARRETT and FARMER, JJ., concur.…
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Bush v. State, 579 So. 2d 362 (Fla. 4th DCA 1991)…ng an upward departure sentence without contemporaneously filing written grounds justifying the departure. The court filed written reasons for departure three days after sentencing. This was error in accordance with our decision in Pittman v. State, 572 So. 2d 29 (Fla. 4th DCA 1990). The sentencing herein predated the supreme court decision in Ree v. State, 565 So. 2d 1329 (Fla.1990), which is not to be applied retroactively. However, the rule applied in Ree was the law of this district at the time of the se…
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Novicki v. State, 604 So. 2d 571 (Fla. 4th DCA 1992)…d the defendant’s sentence and remanded for resentencing, in accordance with the supreme court’s opinion in Ree v. State, 565 So. 2d 1329 (Fla.1990) and this court’s opinions in Ree v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987) and Pittman v. State, 572 So. 2d 29 (Fla. 4th DCA 1990). Immediately after our initial opinion issued, the supreme court modified Ree in State v. Lyles, 576 So. 2d 706 (Fla.1991). See also State v. Williams, 576 So. 2d 281 (Fla.1991). Subsequently, each party filed a motion for rehear…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1981)
- Dakes v. State, 545 So. 2d 939 (Fla. 3d DCA 1989)
- REE v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987)
- Cherry v. State, 540 So. 2d 146 (Fla. 4th DCA 1989)