DERRICK S. ELLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Derrick Ellis was convicted of attempted sexual battery while armed, aggravated battery with a deadly weapon, and attempted robbery with a deadly weapon. The appellate court affirmed the convictions but reversed and remanded the sentences for attempted sexual battery while armed and attempted armed robbery because the trial court improperly enhanced these offenses under section 775.087 when use of a weapon was an essential element of the crimes.
The court reversed Ellis's sentence for attempted sexual battery while armed because the trial court erred in enhancing the offense to a first degree felony when use of a weapon is an essential element of the crime. The court also found error in reclassifying attempted armed robbery, though the sentence was not reversed because it fell within the permissible range for a second degree felony under the habitual offender statute. On remand, the trial court may, but is not required to, sentence Ellis as a habitual violent felony offender and may consider imposing a guidelines departure sentence.
[1] A felony offense in which the use of a weapon is an essential element cannot be reclassified to a higher degree under a statute permitting reclassification for weapon use…
[2] A trial court is not required to sentence a defendant as a habitual violent felony offender upon remand, but may consider imposing a guidelines departure sentence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“because the use of a weapon is an essential element of the offense of attempted sexual battery while armed, it was error to use the weapon to reclassify the offense to a higher degree under section 775.087”
Establishes the core legal principle that section 775.087 cannot be used to enhance offenses where weapon use is already an essential element
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Join FLexlaw to unlock all legal intelligenceEllis was tried before a jury and found guilty of attempted sexual battery while armed (a second degree felony), aggravated battery with a deadly weap…
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GOSHORN, Chief Judge.
Derrick Ellis appeals his convictions and the sentences imposed therefor after a jury found him guilty of attempted sexual battery while armed,1 aggravated battery with a deadly weapon,2 and attempted robbery with a deadly weapon.3 We reverse Ellis’s sentence for attempted sexual battery while armed, but otherwise affirm the trial court.
Attempted sexual battery while armed is a second degree felony. §§ 777.-04(1), (4)(b), 794.011(3), Fla.Stat. (1991). The trial court enhanced the offense to a first degree felony, apparently pursuant to section 775.087, Florida Statutes (1991), which permits reclassification for use of a weapon during commission of a felony, except for those felonies in which use of a weapon is an essential element. Then, upon finding that Ellis was a habitual violent felony offender, the trial court sentenced Ellis to life imprisonment, which is permissible for first degree felonies under the habitual offender statute. § 775.-084(4)(a)1, Fla.Stat. (1991). However, because the use of a weapon is an essential element of the offense of attempted sexual battery while armed, it was error to use the weapon to reclassify the offense to a higher degree under section 775.087. Standley v. State, 554 So. 2d 1200 (Fla. 2d DCA 1989).
The State recognizes that under the habitual violent offender statute, the maximum sentence that can be imposed for a second degree felony is 30 years. However, the State argues that upon remand the trial court should not be required to sentence Ellis as a habitual violent felony offender and be constrained to impose a 30 year sentence, but rather, should be free to enter a guidelines departure sentence. We agree. On remand, the trial court is not required to sentence Ellis as a habitual violent felony offender, but may consider, if appropriate, the imposition of a guidelines departure sentence. See Burdick v. State, 594 So. 2d 267 (Fla.1992) (holding that sentencing under the habitual violent felony offender statute is permissive, not mandatory); King v. State, 597 So. 2d 309 (Fla. 2d DCA), review denied, 602 So. 2d 942 (Fla.1992) (holding that the trial court may decide not to sentence a defendant under the habitual violent felony offender statute after determining the defendant is a habitual violent felony offender and may instead impose a regular guidelines sentence or a departure sentence).
Ellis also argues that the trial court erred by reclassifying his conviction for attempted armed robbery with a deadly weapon from a second degree felony to a first degree felony pursuant to section 775.087. We agree that the reclassification in this case was error. See Hill v. State, 438 So. 2d 513 (Fla. 5th DCA 1983) (recognizing that robbery with a firearm is an “already-enhanced” charge under the robbery statute and thus cannot be reclassified under section 775.087(1)). However, this error is not cognizable on appeal because the sentence of 30 years was within the range permitted for a second degree felony under the habitual offender statute, section 775.084(4)(a)2, Florida Statutes (1991), and thus the sentence is legal and not appealable. On remand, the judgment and sentence must be corrected to reflect that Ellis was convicted of a second degree felony.
Convictions AFFIRMED; Sentences AFFIRMED in part, REVERSED in part, and REMANDED.
W. SHARP, and DIAMANTIS, JJ., concur. . §§ 777.04(1), 794.011(3), Fla.Stat. (1991).
. § 784.045(l)(a)2, Fla.Stat. (1991).
.§§ 777.04(1), 812.13(2)(a), Fla.Stat. (1991).
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White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993)…1990). Given the trial court’s decision to sentence Appellant as a habitual violent felony offender, we believe Burdick affords greater leeway in sentencing than was either suggested by the state or understood by the trial court. See Ellis v. State, 608 So. 2d 514, 515 (Fla. 5th DCA1992); Wright v. State, 599 So. 2d 179 (Fla. 2d DCA1992). The state correctly points out that the. question certified in Burdick was expressly limited to whether the maximum sentence of life for a non-violent felon is mandatory or…
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Holloway v. State, 668 So. 2d 627 (Fla. 5th DCA 1996)…e likely to cause injury. This distinction is important because attempted sexual battery while armed is a second-degree felony which cannot be enhanced for use of a weapon since use of a weapon is an essential element of the offense. Ellis v. State, 608 So. 2d 514 (Fla. 5th DCA 1992). Ironically, had the defendant been convicted of the crime of sexual battery using physical force likely to cause personal injury, his sentence could have been enhanced for use of a weapon during the commission of a felony. See §…
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State v. Anton, 700 So. 2d 743 (Fla. 2d DCA 1997)…on to thirty years in prison as a habitual offender for attempted robbery with a firearm. The sentence is therefore proper as it is within the permitted range for a [*750] second-degree felony under the habitual offender statute. See Ellis v. State, 608 So. 2d 514 (Fla. 5th DCA 1992). Accordingly, we affirm Anton’s sentences but direct the trial court on remand to correct the judgment and sentence to reflect that attempted robbery with a firearm is a second-degree felony. Order granting new trial reversed; c…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- King v. State, 597 So. 2d 309 (Fla. 2d DCA 1992)
- Standley v. State, 554 So. 2d 1200 (Fla. 2d DCA 1989)
- Verdell Hill, Jr. v. State, 438 So. 2d 513 (Fla. 5th DCA 1983)