ALFRED ISAAC, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
SHIVERS, Senior Judge.
Appellant appeals his conviction, after, jury trial, of aggravated battery with a firearm. We affirm his conviction but reverse his sentence and remand for resentencing.
As the state concedes, appellant’s aggravated battery conviction was improperly reclassified from a second-degree felony to a first-degree felony, pursuant to section 775.087(1), Florida Statutes (1989) because, in this case, the use of a weapon was an essential element of appellant’s crime. See Lareau v. State, 573 So. 2d 813 (Fla.1991) and Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991). Therefore, appellant’s sentence is reversed and this cause is remanded for resentencing without reclassification pursuant to section 775.087, Florida Statutes.
ERVIN and WOLF, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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McNEAL v. State, 653 So. 2d 1122 (Fla. 1st DCA 1995)…luded offense. (3) Guilty of Battery, a lesser included 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.…
Authorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991)