WILLIAM ARCHIBALD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by reclassifying the felony and imposing a life sentence under the violent habitual offender statute, as this substantially altered the punishment.
The defendant was convicted of aggravated battery with a deadly weapon while wearing a mask. The trial court reclassified the felony from second degre…
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COBB, Judge.
On this appeal, the defendant maintains that the court erred in reclassifying his conviction for aggravated battery with a deadly weapon while wearing a mask (Count II) from a second degree felony to a first degree felony and then imposing a life sentence as a violent habitual offender. §§ 775.084, 775.0845, 784.045(l)(a)2, (2), (1993).
As authority, the defendant cites Spicer v. State, 615 So. 2d 725 (Fla. 2d DCA 1993). In Spicer, the court held that section 775.0845(4), Florida Statutes (1989) was an enhanced penalty statute and did not operate to reclassify the degree of felony. The Spi-cer court specifically found that the lower court erred in reclassifying an offense to a first degree felony then sentencing to life under the habitual offender statute. The state recognizes Spicer as authority, but claims that any error would be harmless under these facts since the defendant could have received a permitted guideline sentence of life.
We reject the argument of the state and find that the trial court was in a classic either/or situation but erroneously elected both options, substantially altering the punishment of the defendant since violent offender habitualization affects gain time, controlled release eligibility, as well as other areas.
Accordingly, the sentence as to Count II is reversed and remanded to the trial court for resentencing. In all other respects, the convictions and sentences are affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
DIAMANTIS and THOMPSON, JJ., concur.
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Cabal v. State, 678 So. 2d 315 (Fla. 1996)…a felony, acted to reclassify the underlying felony to a distinct, separate crime of the next higher degree. In reaching its decision, the district court certified conflict with Woods v. State, 654 So. 2d 606 (Fla. 5th DCA 1995), Archibald v. State, 646 So. 2d 298 (Fla. 5th DCA 1994), and Spicer v. State, 615 So. 2d 725 (Fla. 2d DCA 1993).1 For the reasons expressed, we agree with the district court decisions in Woods, Archibald, and Spi-cer, and quash the decision of the Third District Court in this case bec…
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Woods v. State, 654 So. 2d 606 (Fla. 5th DCA 1995)…this enhancement factor was not charged in the information nor did the jury make such a finding. In addition, even though the mask, if properly pled and proved, would justify enhancement, it does not “reclassify” the offense. See Archibald v. State, 646 So. 2d 298 (Fla. 5th DCA 1994); Spicer v. State, 615 So. 2d 725 (Fla. 2d DCA 1993). The subtraction of the erroneous points results in a lower guideline range. We also find the court erred in including a minimum mandatory term pursuant to section 775.087(2)…
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Williams v. State, 658 So. 2d 612 (Fla. 2d DCA 1995)…tence the defendant pursuant to the enhanced penalty provisions of section 775.0845, Florida Statutes (1993), and the sentencing guidelines or sentence the defendant as a habitual offender, but the court may not do both. See also Archibald v. State, 646 So. 2d 298 (Fla. 5th DCA 1994). The state further agrees that the written sentence for Count 4, imposing a sentence of thirty years, must be corrected to conform to the trial court’s oral pronouncement of ten years on that count. The defendant’s conviction…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Spicer v. State, 615 So. 2d 725 (Fla. 2d DCA 1993)