JAMES VICTOR HARRELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1993-09-30
No. 92-3647
ZEHMER, C.J., and BOOTH and WOLF, JJ., concur.
624 So. 2d 828 Florida District Court of Appeal, First District (1993) Positive Treatment
Cited by 9 cases

Opinion of the Court
PER CURIAM.

PER CURIAM.

The state correctly concedes error in appellant’s sentence of 15 years on each of two counts of aggravated assault with a firearm. It was error to reclassify these two third degree felonies as second degree felonies pursuant to section 775.087(1), Florida Statutes (1991), as the use of a firearm was an essential element of the two offenses. See Lareau v. State, 573 So. 2d 813 (Fla.1991); Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991). Accordingly, we vacate these sentences and remand for resentencing in accordance with the applicable statutes.

ZEHMER, C.J., and BOOTH and WOLF, JJ., concur.


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  • Reynolds v. Reynolds, 668 So. 2d 245 (Fla. 1st DCA 1996)
    …uncontroverted testimony demonstrating that at least $9,000.00 of the former husband’s credit card debts were incurred after the date of the parties’ separation, a more detailed explanation was required as a matter of law. We agree. Riley v. Parker, 624 So. 2d 828 (Fla. 1st DCA 1993). In Riley, the trial court ordered the former husband to pay only ¾ of the presumptive guideline support amount upon finding that after his “other financial obligations” were considered, the former husband could afford to pay no…
  • Patterson v. State, 693 So. 2d 74 (Fla. 1st DCA 1997)
    …d that the offense of aggravated assault with a firearm under section 784.021(l)(a) cannot be reclassified to a second-degree felony pursuant to section 775.087(1) because use of a firearm is an essential element of that offense. Harrelson v. State, 624 So. 2d 828 (Fla. 1st DCA 1993); Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989); Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988). Because the trial court did not attach portions of the record to the order denying relief, however, we cannot make this d…
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    …aring on restitution. We also remand on appellant’s third issue. The offense of aggravated assault with a firearm cannot be reclassified to a second degree felony because use of a firearm is an essential element of the offense. Harrelson v. State, 624 So. 2d 828 (Fla. 1st [*230] DCA 1993); Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989); Stinson v. State, 520 So. 2d 680 (Fla. 1st DCA 1988). Although appellant’s guidelines seoresheet shows that aggravated assault was calculated correctly as a third degre…

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