ISRAEL TORRIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Israel Torris appeals his conviction and sentence for aggravated battery with a firearm. Torris was found guilty of aggravated battery with a firearm, a second-degree felony. His conviction was enhanced to a first-degree felony pursuant to section 775.087(1), Florida Statutes (1991), because Torris used a firearm during the commission of the felony. His sentencing guidelines scoresheet was calculated on the basis of a first-degree felony conviction.
The trial court erred in enhancing Tor-ris’s conviction to a first-degree felony based on the use of a firearm because the firearm was an essential element of the offense. Lareau v. State, 573 So. 2d 813, 815 (Fla.1991) (aggravated battery with the use of a deadly weapon not subject to reclassification pursuant to section 775.-087(1) because the use of a weapon is an essential element of the crime); State v. Brown, 476 So. 2d 660, 662 (Fla.1985); § 775.087(l)(a), Fla.Stat. (1991); see Watson v. State, 591 So. 2d 951 (Fla. 2d DCA 1991). Thus, the conviction, as enhanced to a first-degree felony, may not stand. Accordingly, Torris’s sentence is vacated and the cause is remanded for further proceedings.
Conviction reversed; sentence vacated, and cause remanded.
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Hernandez v. State, 30 So. 3d 610 (Fla. 3d DCA 2010)…anced because use of a firearm is already an essential element of the crime. See, e.g., Lareau v. State, 573 So. 2d 813 (Fla.1991); Metz v. State, 15 So. 3d 32 (Fla. 2d DCA 2009); Benjamin v. State, 8 So. 3d 460 (Fla. 4th DCA 2009); Torris v. State, 611 So. 2d 57 (Fla. 3d DCA 1992). Sometimes it is unclear whether the jury found the defendant guilty of one or the other form of aggravated battery. In such instances, appellate courts have held that the trial court may not reclassify the aggravated battery con…
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Byrd v. State, 754 So. 2d 191 (Fla. 3d DCA 2000)…state, the court erred in applying a four-year statute of limitations: Defendant was convicted of aggravated battery with a firearm, a second degree rather than a first degree felony. See Lareau v. State, 573 So. 2d 813 (Fla.1991); Torris v. State, 611 So. 2d 57 (Fla. 3d DCA 1992). Therefore, the prosecution was subject to the three-year statute of limitations. § 775.15(2)(b), Fla. Stat. (1991). Defendant, however, was arrested more than three years after the commission of the offense. The record is devoid…
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Garmon v. State, 627 So. 2d 628 (Fla. 3d DCA 1993)…to a first degree felony based upon his use of a firearm. § 775.087(l)(b), Fla.Stat. (1991). A conviction for aggravated battery with a firearm cannot be enhanced because the use of a firearm is an essential element of that offense. Torris v. State, 611 So. 2d 57, 58 (Fla. 3d DCA 1992); see Lareau v. State, 573 So. 2d 813, 815 (Fla.1991) (aggravated battery with the use of a deadly weapon is not subject to reclassification). The State also correctly concedes that the trial court erroneously enhanced appella…
Authorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Watson v. State, 591 So. 2d 951 (Fla. 2d DCA 1991)
- State v. Brown, 476 So. 2d 660 (Fla. 1985)