ANTHONY SILAS BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1991-07-29
No. 90-3204
WOLF, J., concurs., ALLEN, J., specially concurs with opinion.
583 So. 2d 742 Florida District Court of Appeal, First District (1991) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Anthony Brown was convicted of aggravated battery with a weapon and his sentence was enhanced from second-degree to first-degree felony under Florida's weapon enhancement statute. The appellate court reversed the enhancement, holding that because the jury was instructed that use of a deadly weapon was an essential element of the aggravated battery charged, the enhancement statute did not apply.


Holding

The sentence enhancement was improper. Although use of a weapon is not an essential element of aggravated battery in all cases, the jury instructions and proof in this case made it an essential element of the aggravated battery of which Brown was convicted. Section 775.087(1) does not permit enhancement when the use of a weapon is an essential element of the offense charged.


Headnotes

[1] A defendant cannot have a sentence enhanced under section 775.087(1), Florida Statutes, if the use of a weapon was an essential element of the underlying felony as charge…

[2] When the jury instructions require the state to prove the use of a deadly weapon as an element of aggravated battery, the use of that weapon becomes an essential element…

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Key Quotes

“although the use of a weapon is not an essential element of the substantive offense of aggravated battery in all cases, under the circumstances of this case, it became an essential element of the aggravated battery charged and proven”

Establishes that weapon use became an essential element due to the jury instructions and evidence presented in this particular case

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Facts & Procedural History

Brown was charged with aggravated battery with a weapon (knife) under section 784.045(1)(a). The trial court instructed the jury that before finding B…

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

Appellant appeals a judgment and sentence finding him guilty of aggravated battery with a weapon, a second-degree felony pursuant to section 784.045(l)(a), Florida Statutes (1989) which the trial court enhanced to a first-degree felony pursuant to section 775.087(1), Florida Statutes. Appellant challenges only the enhancement of his sentence. We reverse his sentence and remand for resentencing without the enhancement under section 775.087(1).

Appellant was charged with aggravated battery with a weapon in violation of section 784.045(l)(a)1 and section 775.087(1)2. The information charged that he committed battery causing great bodily harm, permanent disability or permanent disfigurement and in the course thereof used a deadly weapon, to wit: a knife.

The court instructed the jury that before appellant could be found guilty of aggravated battery, the jury must find that the state proved as an element of the crime that he used a deadly weapon. Appellant argues that, in light of that charge, use of a deadly weapon became an essential element of the aggravated battery with which he was charged. We find that, although the use of a weapon is not an essential element of the substantive offense of aggravated battery in all cases, under the circumstances of this case, it became an essential element of the aggravated battery charged and proven, especially in light of the incorrect and confusing charge given to the jury and since the only aggravated battery shown in this case was the infliction of knife wounds. Compare Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989) and Webb v. State, 410 So. 2d 944 (Fla. 1st DCA 1982).

Therefore, we agree with appellant that enhancement of his sentence pursuant to section 775.087(1) was improper since the use of a deadly weapon effectively was an essential element of the aggravated battery of which appellant was convicted in this case. Appellant’s sentence is REVERSED and this cause is REMANDED for resentencing without enhancement pursuant to section 775.087, Florida Statutes.

WOLF, J., concurs.

ALLEN, J., specially concurs with opinion.

. Section 784.045(l)(a), Florida Statutes (1989), provides:

A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement: or

2. using a deadly weapon.

Prior to 1988, section 784.045(1) provided as follows:

A person commits aggravated battery who, in committing battery:
(a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or (b) uses a deadly weapon.

[Emphasis supplied.]

. Section 775.087(1) 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:
**

(b) In the case of a felony of the second degree, to a felony of the first degree.

[Emphasis supplied.]

Concurrence
ALLEN, Judge,

ALLEN, Judge,

specially concurring.

I agree with the result reached in Judge Wigginton’s opinion. I write simply to make some brief observations.

The charging document was properly worded. In order to charge a defendant with first degree felony aggravated battery under the enhancement provided by section 775.087(1), the involvement of the firearm must be alleged in the same count which charges a section 784.045(l)(a)Z ag gravated battery. See State v. McKinnon, 540 So. 2d 111 (Fla.1989), and Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985). That is precisely what the prosecutor did here.

The appellant’s sentence must be reversed because of the trial court’s very confusing efforts to instruct on the elements of a section 784.045(l)(a)Z aggravated battery, and that offense as enhanced due to the appellant’s alleged use of a firearm. This confusion could have been avoided if the trial judge had given the Florida Standard Jury Instruction (Criminal) for aggravated battery, ending that instruction with part 2.a., and had then given Florida Standard Jury Instruction (Criminal) 3.05(b).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996)
    …sed in committing the felony. However, reclassification is precluded under the statute if the crime charged requires use of a weapon as one of its essential elements. See McNeal v. State, 653 So. 2d 1122 (Fla. 1st DCA 1995). See also Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991). In the instant case, the jury instruction for aggravated battery stated: Before you can find the defendant, Henry Anthony Dozier, guilty of Aggravated Battery under Count One of the Information, the State must prove the follow…
  • Stoute v. State, 915 So. 2d 1245 (Fla. 4th DCA 2005)
    …n that possession of a firearm was an essential element of the crime. See, e.g., Lareau v. State, 573 So. 2d 813, 815 (Fla.1991); Legg v. State, 742 So. 2d 826 (Fla. 2d DCA 1999); McNeal v. State, 653 So. 2d 1122 (Fla. 1st DCA 1995); Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991). Unfortunately for the defendant, those cases do not support his position. Aggravated battery is an alternative conduct crime. Pursuant to the statute, the State can either prove the defendant “[ijntentionally or knowingly cause…
  • McNEAL v. State, 653 So. 2d 1122 (Fla. 1st DCA 1995)
    …offense. (4) Guilty of Attempted Battery, a lesser included offense. (5) Not Guilty. The jury found appellant guilty of attempted aggravated battery. We conclude that, as in Isaac v. State, 620 So. 2d 240 (Fla. 1st DCA 1993), and Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991), the use of a weapon became an essential element of the offense in this case, even though use of a weapon is not always an essential element of aggravated battery, Lareau v. State, 573 So. 2d 813, 815 (Fla.1991). In Isaac and Br…

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