CORNEAL PEACOCK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Corneal Peacock appeals his conviction for aggravated battery with a firearm. The court affirmed the conviction but reversed and remanded for resentencing, finding that the trial court improperly applied sentencing enhancement provisions when the jury's verdict was based on a firearm-specific statute that already incorporated that element.
The court held that no error was committed in denying the motion for mistrial. However, the court held that the trial court was precluded from using section 775.087(1)(b) to enhance appellant's penalty because the conviction under section 784.045(1)(b) already contemplated use of a firearm as a necessary element.
[1] A trial court does not err in denying a motion for mistrial when a victim's testimony, though eliciting sympathy, is otherwise admissible.
[2] A conviction based on aggravated battery with a firearm, where the firearm is a necessary element of the offense, precludes the use of statutory firearm enhancement provi…
Previewing 2 of 3 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“Appellant was found guilty of aggravated battery with a firearm... We find that the conviction is thus based on section 784.045(l)(b), which contemplates use of a firearm as a necessary element of the offense of which appellant was convicted.”
Establishes that the conviction inherently includes the firearm element, preventing double enhancement.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of aggravated battery with a firearm after a jury trial. The victim, who was left paralyzed by the shooting, testified but cou…
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PER CURIAM.
Appellant appeals from his conviction and sentence for aggravated battery with a firearm. He raises two points on appeal. Appellant first argues that the trial court erred when it denied his motion for mistrial. Appellant moved for mistrial when the trial court permitted the victim to testify, arguing that the victim’s testimony was unreliable and elicited for the sole purpose of inflaming the jury. The victim had been left paralyzed as a result of the shooting, but was unable to say who shot him.
The record shows that appellant objected to the victim’s testimony, the trial court overruled the objection and after the victim testified, appellant moved for a mistrial.
We hold that no error was committed. See McGriffv. State, 417 So. 2d 800, 301 (Fla. 3d DCA 1982); Waddy v. State, 355 So. 2d 477 (Fla. 1st DCA), cert, denied, 362 So. 2d 1056 (Fla.1978).
Thus, appellant’s conviction is affirmed.
We do, however, reverse and remand for resentencing based upon appellant’s second point on appeal.
We agree with appellant that our decision in Moore v. State, 616 So. 2d 168 (Fla. 4th DCA 1993), is controlling. See also Lareau v. State, 573 So. 2d 813 (Fla.1991).
Appellant was found guilty of aggravated battery with a firearm. On the verdict form, the jury bypassed “Guilty of Aggravated Battery With A Deadly Weapon, a lesser included crime,” and cheeked the next box, which was “Guilty of Aggravated Battery With a Firearm.” We find that the conviction is thus based on section 784.045(l)(b), which contemplates use of a firearm as a necessary element of the offense of which appellant was convicted. As a result, the trial court was precluded from using section 775.087(l)(b) to enhance appellant’s penalty. We therefore reverse and remand for resentencing in compliance with Moore and La-reau.
DELL, C.J., and POLEN and STEVENSON, JJ„ concur.
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Citator
Cited By
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T.B. v. State, 669 So. 2d 1085 (Fla. 4th DCA 1996)…injuries was harmless error. Here, we recognize that evidence of victim injury, even where not an element of the offense charged, is admissible if otherwise relevant. E.g., McGriff v. State, 417 So. 2d 300, 301 (Fla. 3d DCA 1982); Peacock v. State, 638 So. 2d 190 (Fla. 4th DCA 1994). See also King v. State, 545 So. 2d 375, 378 (Fla. 4th DCA), rev. denied, 551 So. 2d 462 (Fla.1989); Henderson v. State, 463 So. 2d 196, 200 (Fla.), cert. denied, 473 U.S. 916; 105 S.Ct. 3542, 87 L.Ed.2d 665 (1985). This is consi…
Authorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Waddy v. State, 355 So. 2d 477 (Fla. 1st DCA 1978)
- Moore v. State, 616 So. 2d 168 (Fla. 4th DCA 1993)