DEON GARMON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Deon Garmon appealed his convictions for attempted murder, aggravated battery, aggravated assault, armed robbery, and carrying a concealed firearm. The court affirmed his convictions but reversed and remanded his sentences for aggravated battery and aggravated assault, finding the trial court impermissibly enhanced those sentences based on firearm use, which was an essential element of those offenses.
The court held that the trial court impermissibly enhanced the sentences for aggravated battery and aggravated assault because the use of a firearm is an essential element of those offenses and therefore cannot be used as a basis for enhancement under § 775.087(1)(b), Fla.Stat. (1991).
[1] A conviction for aggravated battery with a firearm cannot be enhanced based upon the use of a firearm because the use of a firearm is an essential element of the offense.
[2] A conviction for aggravated assault with a firearm cannot be enhanced based upon the use of a firearm because the use of a firearm is an essential element of the offense.
Previewing 2 of 4 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“A conviction for aggravated battery with a firearm cannot be enhanced because the use of a firearm is an essential element of that offense.”
Establishes the core legal principle that essential elements of an offense cannot form the basis for sentence enhancement
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant Garmon was charged and convicted on five counts: attempted first degree murder, aggravated battery, aggravated assault, armed robbery, and c…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Essential Element Of Offense cases and more on FLexlaw
PER CURIAM.
Appellant was charged in a five count information with attempted first degree murder (count one), aggravated battery (count two), aggravated assault (count three), armed robbery (count four), and carrying a concealed firearm (count five). He was convicted as charged and sentenced to twenty-five years each on counts one and two, ten years on count three, fifteen years on count four, and five years on count five.
Appellant does not challenge his convictions and sentences for attempted first degree murder, armed robbery and carrying a concealed firearm. Therefore, we affirm those convictions and sentences.
Turning to the issues raised by appellant, we conclude that the State correctly conceded that the trial court impermissibly enhanced the appellant’s sentence for aggravated battery with a firearm from a second degree felony 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 appellant’s sentence for aggravated assault. For the same reasons as we stated above, a conviction for aggravated assault with a firearm cannot be enhanced based upon the use of a firearm because the use of a firearm is an essential element of the offense charged. Watson v. State, 591 So. 2d 951, 953 (Fla. 2d DCA 1991); Ellison v. State, 538 So. 2d 90, 91 (Fla. 1st DCA 1989).
Because the judgments of conviction do not reflect that the trial court reclassified the offenses based upon the enhancement, it is unnecessary for the trial court to emend the felony degrees. Accordingly, appellant’s convictions are affirmed.
However, we reverse appellant’s sentences for aggravated battery and aggravated assault and remand for resentencing in conformity with this opinion.
Convictions affirmed; reversed and remanded for resentencing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Watson v. State, 591 So. 2d 951 (Fla. 2d DCA 1991)
- Ellison v. State, 538 So. 2d 90 (Fla. 1st DCA 1989)
- Torris v. State, 611 So. 2d 57 (Fla. 3d DCA 1992)