DANIEL ALLEN WINGATE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that aggravated battery with a deadly weapon is not subject to reclassification, and the sentence exceeded the statutory maximum.
Appellant was convicted of armed robbery, aggravated battery, and impersonating an officer. The trial court sentenced him to a term exceeding the stat…
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RYDER, Acting Chief Judge.
Daniel Allen Wingate challenges his convictions and sentences for armed robbery with a deadly weapon, aggravated battery and falsely impersonating a police officer during the commission of a felony. He raises three points on appeal. We find merit in his third argument that the trial court erred in exceeding the maximum penalty of fifteen years for count II, aggravated battery, a second degree felony.
Our supreme court recently held that aggravated battery with the use of a deadly weapon, section 784.045(l)(b), is not subject to reclassification pursuant to section 775.087(1) because the use of a weapon is an essential element of the crime. Lareau v. State, 573 So. 2d 813 (Fla.1991).1 The combined terms of incarceration and probation cannot exceed the statutory maximum. State v. Lindsey, 560 So. 2d 406 (Fla. 5th DCA 1990).
We affirm the appellant’s convictions, the sentences for armed robbery with a deadly weapon and falsely impersonating a police officer during the commission of a felony, and reverse and remand for resentencing for aggravated battery in accord with this opinion.
FRANK and HALL, JJ., concur. . The trial court did not have the benefit of this decision at the time appellant was sentenced.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gause v. State, 739 So. 2d 1170 (Fla. 2d DCA 1999)…Lareau v. State, 573 So. 2d 813 (Fla.1991). Aggravated battery with the use of a deadly weapon is not subject to reclassification pursuant to section 775.087(1), because the use of a weapon is an essential element of the crime. See Wingate v. State, 590 So. 2d 1108 (Fla. 2d DCA 1991). It is, thus, ordered that the denial of the motion for postconviction relief as to this issue is reversed and remanded for reconsideration. On remand, if the court again concludes that summary denial is proper, it must attach t…
Authorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- State v. Lindsey, 560 So. 2d 406 (Fla. 5th DCA 1990)