JERMAINE GRANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jermaine Grant appeals his convictions and sentences for burglary with assault or battery while armed and misdemeanor battery. The court affirmed the convictions but reversed the sentencing order because the trial court improperly classified the crime and applied habitual offender enhancement to a life felony, which was not authorized under the statute at the time of the offense.
The burglary with assault or battery charge, when enhanced by the weapon statute, constitutes a life felony rather than a first degree felony. The adjudication as a habitual violent felony offender must be reversed because the habitual offender statute in effect on the crime date did not provide enhanced penalties for life felonies. The convictions are affirmed but sentencing is reversed and remanded.
[1] An isolated, unobjected-to "golden rule" argument during closing statement does not constitute fundamental error.
[2] Burglary with an assault or battery while armed, when enhanced by a weapon, is a life felony, not a first-degree felony.
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“The effect of the weapon enhancement statute, § 775.087(1), Fla.Stat., is to enhance the offense from a first degree felony to a life felony.”
Establishes the legal principle that weapon enhancement elevates burglary with assault from first degree to life felony
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Join FLexlaw to unlock all legal intelligenceGrant was charged with burglary with assault or battery while armed with a concrete brick. He was convicted and the trial court classified the crime a…
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COPE, Judge.
Jermaine Grant appeals his convictions and sentences for burglary with an assault or battery while armed and misdemeanor battery.1 We affirm in part and reverse in part.
Defendant Grant first contends that the state made an impermissible golden rule argument during closing statement. Although defendant is correct, the impermissible argument was not objected to, was an isolated comment, and in no way rose to the level necessary to establish fundamental error. Consequently, we reject defendant’s argument on this issue.
Defendant’s next issue has merit. Defendant was charged and convicted of burglary with an assault or battery in violation of section 810.02(2)(a), Florida Statutes (1993), while using a weapon, in this case a concrete brick, in violation of section 775.087, Florida Statutes (1993). The judgment categorized the crime as being a first degree felony. At sentencing, the court found defendant to be a habitual violent felony offender and on this count imposed a sentence of twenty-five years with a mandatory minimum sentence of fifteen years. See § 775.084(4)(b)l, Florida Statutes (1993).
Defendant correctly argues that the judgment is in error in classifying the crime as a first degree felony. Here the state elected to charge defendant with burglary with an assault or battery. See § 810.02(2)(a), Fla.Stat. (1993). That offense is a first degree felony punishable by life imprisonment. Id. The effect of the weapon enhancement statute, § 775.087(1), Fla.Stat., is to enhance the offense from a first degree felony to a life felony. Id. § 775.087(l)(a). Consequently, the judgment should have reflected that the burglary offense in this ease is a life felony. See id.; Lamont v. State, 610 So. 2d 435, 438-39 (Fla.1992); Lareau v. State, 573 So. 2d 813, 814-15 (Fla.1991); Lafleur v. State, 661 So. 2d 346, 349 (Fla. 3d DCA 1995).
It follows, as defendant argues, that defendant’s adjudication as a habitual violent felony offender on this count must be reversed. That is so because the date of the crime was December 23, 1993. Under the version of the habitual offender statute in existence at that time, the statute did not provide an enhanced habitual offender penalty for a defendant who committed a life felony. Lamont v. State, 610 So. 2d at 438; Lafleur v. State, 661 So. 2d at 349.2 Accordingly we reverse the sentencing order and remand for a new sentencing hearing based on a new sentencing guidelines scoresheet. Because the trial court was not authorized to use the habitual offender statute in this instance, the effect was that the trial court imposed a departure sentence without realizing that it was doing so. On remand the trial court may impose a departure sentence if there are valid grounds to do so. See Wilson v. State, 666 So. 2d 271 (Fla. 3d DCA 1996); see also State v. Betancourt, 552 So. 2d 1107, 1108 (Fla.1989).
The convictions are affirmed, but the sentencing order is reversed and the cause remanded for a new sentencing hearing.
. Defendant Grant was also charged with one count of attempted armed robbery, on which the jury was not able to reach a verdict. Prior to retrial, defendant entered into a plea agreement on that count. The present appeal does not involve any issue relating to the attempted armed robbery charge.
. It should be noted that "effective October 1, 1995, the legislature has overruled Lamont by providing that life felonies are subject to habitual offender sentencing." Lafleur v. State, 661 So. 2d at 349 n. l(citation omitted).
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Lovett v. State, 773 So. 2d 574 (Fla. 3d DCA 2000)…nt was adjudicated as an HVFO on this count. Because the State charged only an assault and battery under the burglary statute, and charged the use of the weapon under section 775.087, enhancement of the conviction was permitted. See Grant v. State, 677 So. 2d 45, 46 (Fla. 3d DCA 1996); see also Lareau v. State, 573 So. 2d 813, 814-15 (Fla.1991). This means that the burglary, which is a first degree felony punishable by life imprisonment, see § 810.02(2)(a), Fla. Stat. (1993), was enhanced to a life felony b…
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Austin v. State, 756 So. 2d 1080 (Fla. 4th DCA 2000)…mmary denial as to this ground and remand for resentencing on the armed kidnapping count only. The trial court may exceed the sentencing guidelines in resentencing if there are valid grounds to do so. See Corbitt, 697 So. 2d at 1310; Grant v. State, 677 So. 2d 45 (Fla. 3d DCA 1996). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. WARNER, C.J., DELL and HAZOURI, JJ., concur.…
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Nathan v. State, 689 So. 2d 1150 (Fla. 2d DCA 1997)…motion to correct an illegal sentence if the terms or conditions of the sentence exceed those authorized by the habitual offender statute. Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991), review denied, 613 So. 2d 5 (Fla.1992). In Grant v. State, 677 So. 2d 45 (Fla. 3d DCA 1996), the defendant was charged with and convicted of a 1993 burglary with an assault or battery while using a weapon. The judgment listed the crime as a first-degree felony, and the trial court found the defendant to be a habitual vio…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- Lamont v. State, 610 So. 2d 435 (Fla. 1992)
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Hollice Lafleur v. State, 661 So. 2d 346 (Fla. 3d DCA 1995)
- J.C. Concert Sound & Lighting, Inc. v. Gold, 666 So. 2d 271 (Fla. 3d DCA 1996)