MICHAEL ANGELO MCNEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael McNeal was convicted of attempted aggravated battery and sentenced under Florida's sentencing guidelines, which reclassified the offense from third to second degree felony based on weapon use. The First District Court of Appeal reversed, holding that because the jury instructions and verdict form made weapon use an essential element of the offense, it could not be used to reclassify the felony under section 775.087(1).
The court held that weapon use became an essential element of the offense in this case due to the jury instructions and verdict form construction, and therefore cannot be used to reclassify the felony under section 775.087(1). The statute prohibits reclassification when weapon use is an essential element of the offense charged.
[1] A defendant cannot be sentenced with a weapon enhancement under section 775.087(1), Florida Statutes, when the use of a weapon is an essential element of the underlying f…
[2] When jury instructions require proof of weapon use as an element of aggravated battery, the use of a weapon becomes an essential element for sentencing enhancement purpos…
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“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”
Establishes the court's key holding that weapon use can become essential in particular cases despite not being inherently essential to the offense
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcNeal was charged with aggravated battery on Marvin Cooks using a broken bottle, causing great bodily harm, and simple battery on Eric Hurst. The jur…
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JOANOS, Judge.
In this direct appeal of a conviction and sentence for attempted aggravated battery, appellant contends the trial court erred in accepting a sentencing guidelines scoresheet which reclassified the primary offense from a third to a second degree felony pursuant to section 775.087(1), Florida Statutes,1 because in this case, the use of a weapon was an essential element of the offense. The reclassification resulted in appellant being scored 105 total points rather than 73 total points, placing him in the 5½ to 7 year recommended/ 4½ to 9 year permitted range rather than the 3½ to 4⅜ year recommended/ 2½ to 5½ year permitted range. The trial court sentenced appellant to 9 years in state prison. We agree that in this case, the use of a weapon became an essential element of the offense, and cannot be used to reclassify the degree of felony, and therefore reverse and remand for resentencing.
Appellant was charged with:
committing a battery upon Marvin Cooks by actually and intentionally touching or striking said person against said person’s will, or by intentionally causing bodily harm to said person, and in commission of said battery did intentionally or knowingly cause great bodily harm, permanent disability, or permanent disfigurement to Marvin Cooks, and in commission of said crime did use a deadly weapon, to-wit: broken bottle, in violation of Sections 784.045(l)(a) and 775.087(1) ...
He was also charged with simple battery on Eric Hurst arising out of the same incident.
The trial court instructed the jury as follows on the aggravated battery:
before you can find the defendant guilty of aggravated battery under Count I, the State of Florida must prove the following two elements beyond a reasonable doubt. No. 1, they must prove that the defendant intentionally touched or struck the victim Marvin Cooks against his will or he intentionally caused bodily harm to the victim and No. 2 that the defendant in committing the battery intentionally or knowingly caused great bodily harm to the victim, permanent disability to the victim or permanent disfigurement to the victim or that he used a weapon.
The verdict form provided to the jury included the following options as to the charge of aggravated battery in count I:
(1) Guilty of Aggravated Battery with great bodily harm, permanent disability or permanent disfigurement and with a deadly weapon, as charged in the State’s information.
(2) Guilty of Attempted Aggravated Battery with great bodily harm, permanent disability or permanent disfigurement, with a deadly weapon, a lesser included 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. State, 573 So. 2d 813, 815 (Fla.1991).
In Isaac and Brown, this court found reclassification pursuant to 775.087 improper because in those cases, the use of a deadly weapon or firearm was or became an essential element of the aggravated battery charged, even though “the use of a weapon is not an essential element of the substantive offense of aggravated battery in all eases.” Brown, 583 So. 2d at 743. In Brown, the information charged “that he committed battery causing great bodily harm, permanent disability or permanent disfigurement and in the course thereof used a deadly weapon, to wit: a knife.” (emphasis in original) The court had instructed the jury that to find appellant guilty they had to find that the state proved use of a deadly weapon. The court determined that because of the way the jury was charged and “since the only aggravated battery shown in this ease was the infliction of knife wounds,” the use of a weapon became an essential element of the crime charged and proven.
In a concurring opinion in Brown, Judge Allen explained that the charging document was properly worded, because “in order to charge a defendant with first degree felony aggravated battery under the enhancement provided by section 775.087(1), the involvement of the firearm [or weapon] must be alleged in the same count which charges a section 784.045(l)(a)l aggravated battery” (emphasis original); but the instructions to the jury were confusing, and the confusion could have been avoided by giving the appro priate part of the standard jury instruction for aggravated battery followed by standard jury instruction 3.05(b).
We conclude that, in the present case, the charging document, which referenced section 784.045(l)(a) and 775.087(1) in the same count, was worded properly. However, as in Brown, the instructions to the jury were not those designed for a case of aggravated battery based on great bodily injury where reclassification is sought due to the use of a weapon. The court gave instructions which would allow the jury to find appellant guilty under one of two alternative theories of aggravated battery: great bodily injury or use of a weapon. These instructions were not consistent with the information or with the verdict form.
In addition, the verdict form used did not permit the jury to decide whether appellant committed attempted aggravated battery based on great bodily injury independently of their determination that he used a weapon in the course of committing that offense.2 Each of the possible ways of committing the offense were combined into a single option. In other words, the jury’s options on the verdict form were limited so that if they were to convict of aggravated battery at all, the verdict form required them to also find use of a deadly weapon. Cf. Thompson v. State, 636 So. 2d 599 fn. 1 (Fla. 5th DCA 1994) (verdict form provided three alternatives for jury to choose from: aggravated battery causing great bodily harm, aggravated battery with a weapon, or aggravated battery causing great bodily harm with a weapon). Given the circumstances of this case, we conclude the use of the weapon became an essential element of the offense of aggravated battery and cannot be used to reclassify the felony.
As to appellant’s second point on appeal, we find no error in scoring victim injury points when appellant bit the simple battery victim, requiring him to obtain a tetanus shot.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
ERVIN and WOLF, JJ., concur. . Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows ... (emphasis supplied)
. In State v. Tripp, 642 So. 2d 728 (Fla.1994), the supreme court said there must be a specific finding on the jury form that a weapon was used in order for the felony to be reclassified under 775.087(1). See also State v. Overfelt, 457 So. 2d 1385 (Fla.1984). It appears that may have been the purpose of including, on the juiy form here, the language "with a deadly weapon” on the lines with aggravated battery and attempted aggravated battery.
Cases With Similar Vibessemantic neighbors from the corpus
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Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996)…degree felonies under certain circumstances when a weapon is used in committing the felony. However, reclassification is precluded under the statute if the crime charged requires use of a weapon as one of its essential elements. See McNeal v. State, 653 So. 2d 1122 (Fla. 1st DCA 1995). See also Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991). In the instant case, the jury instruction for aggravated battery stated: Before you can find the defendant, Henry Anthony Dozier, guilty of Aggravated Battery under…
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Stoute v. State, 915 So. 2d 1245 (Fla. 4th DCA 2005)…ing aggravated battery charges to support his position that possession of a firearm was an essential element of the crime. See, e.g., Lareau v. State, 573 So. 2d 813, 815 (Fla.1991); Legg v. State, 742 So. 2d 826 (Fla. 2d DCA 1999); McNeal v. State, 653 So. 2d 1122 (Fla. 1st DCA 1995); Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991). Unfortunately for the defendant, those cases do not support his position. Aggravated battery is an alternative conduct crime. Pursuant to the statute, the State can either pro…
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Montgomery v. State, 704 So. 2d 548 (Fla. 1st DCA 1997)…91 So. 2d 279 (Fla. 5th [*551] DCA 1991)(enhancement not proper where the verdict form did not clearly show whether the jury found aggravated battery by virtue of infliction of great bodily harm or by virtue of the use of a weapon); McNeal v. State, 653 So. 2d 1122 (Fla. 1st DCA 1995)(re-elassification not proper where verdict form did not permit the jury to decide whether the defendant committed aggravated battery based on great bodily injury independently of their determination that he used a weapon in the c…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- State v. Vinney Tripp, 642 So. 2d 728 (Fla. 1994)
- Brown v. State, 583 So. 2d 742 (Fla. 1st DCA 1991)
- Hittle v. State, 636 So. 2d 599 (Fla. 5th DCA 1994)
- Isaac v. State, 620 So. 2d 240 (Fla. 1st DCA 1993)