DANNY TORO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Danny Toro appealed his convictions for kidnapping and four counts of sexual battery, challenging the trial court's declaration of him as a habitual felony offender on all charges. The court affirmed his convictions and the kidnapping sentence but reversed the sexual battery sentences because life felonies cannot be enhanced under the habitual offender statute, and remanded for resentencing.
The court held that: (1) the four sexual battery offenses are life felonies and cannot be enhanced under the habitual offender statute; (2) the kidnapping offense is a first-degree felony not reclassified as a life felony because there was no specific jury finding of firearm use; and (3) the habitual offender enhancement was properly applied to the kidnapping offense but the sexual battery sentences must be reversed and resentenced without the enhancement.
[1] Life felonies are not subject to habitual offender enhancement.
[2] A jury verdict finding a defendant guilty as charged is insufficient to reclassify a felony based on firearm use without a specific jury finding of such use.
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Join FLexlaw to unlock all legal intelligence“A verdict form that recites the defendant is guilty as charged is not sufficient for reclassification or enhancement purposes.”
Establishes the requirement for a specific jury finding regarding firearm use to reclassify kidnapping as a life felony
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Join FLexlaw to unlock all legal intelligenceToro was convicted of kidnapping and four counts of sexual battery. At sentencing, the trial court declared him a habitual felony offender on each off…
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PER CURIAM.
Danny Toro challenges his convictions and sentences for kidnapping and four counts of sexual battery. We affirm his convictions and his sentence on the kidnapping charge. We reverse the sentences imposed on the sexual battery charges and remand for re-sentencing because the trial court erroneously declared Toro a habitual offender on the four life felonies, the sexual battery offenses.
At sentencing the trial court declared Toro a habitual felony offender on each of the crimes for which he was convicted. He argues this was error because the kidnapping and sexual battery offenses are life felonies not subject to habitualization. We agree that the four sexual battery offenses are life felonies and cannot be enhanced under the applicable habitual offender statute. See Lamont v. State, 610 So. 2d 435 (Fla.1992); Joe v. State, 668 So. 2d 325 (Fla. 2d DCA 1996). However, the kidnapping offense is a first degree felony, and the punishment for a first degree felony can be enhanced under the habitual offender statute. Blotz v. State, 640 So. 2d 1240 (Fla. 2d DCA 1994).
Toro argues the kidnapping offense is a life felony because use of a firearm was charged in the information and the jury found him guilty as charged. Despite the language in the information, a felony can only be reclassified pursuant to section 775.087(1), Florida Statutes (1993), if there has been a specific finding by the jury that the defendant carried, displayed or used a firearm. A verdict form that recites the defendant is guilty as charged is not sufficient for reclassification or enhancement purposes. State v. Tripp, 642 So. 2d 728 (Fla.1994). Since there was no specific jury finding of use of a firearm, Toro’s conviction for kidnapping cannot be reclassified as a life felony. The kidnapping offense is a first degree felony under section 787.01(2), Florida Statutes (1993), and a defendant who has been convicted of a first degree felony can have his punishment enhanced to life imprisonment when he is found to be a habitual felony offender. See § 775.084(4)(a), Florida Statutes (1993). Thus, the life sentence imposed for the kidnapping offense is not erroneous.
On resentencing for the sexual batteries, the trial court should order a new sentencing guidelines seoresheet as we note several errors on the present seoresheet. In addition there are portions of the seoresheet that are illegible. We reverse the sentences imposed for the four sexual battery convictions and remand for resentencing within the guidelines.
CAMPBELL, A.C.J., and QUINCE and WHATLEY, JJ., concur.
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Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004)…rearm, a verdict form that simply recites that the defendant is guilty as charged does not support reclassification of the crime under section 775.087(1) because there is no specific jury finding that the defendant used a firearm. See Toro v. State, 691 So. 2d 576, 577 (Fla. 2d DCA 1997). Moreover, an “as charged” verdict will not support the imposition of a minimum mandatory sentence under section 775.087(2) when the verdict fails to reflect that the defendant was in actual, as opposed to constructive, posse…
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Hazel v. State, 813 So. 2d 109 (Fla. 3d DCA 2002)…ssession of a firearm as an essential element under the above statute.” Furthermore, the jury verdict form reveals that the jury made an explicit finding that the Defendant used a firearm during the commission of the kidnapping. See, Toro v. State, 691 So. 2d 576 (Fla. 2d DCA 1997). Accordingly, the Motion is DENIED. Affirmed. . There is an exception for "a felony in which the use of a weapon or firearm is an essential element....” § 775.087(1), Fla. Stat. (2001). The exception is not applicable here.…
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Solomon v. State, 206 So. 3d 822 (Fla. 2d DCA 2016)…offenses to a higher degree. Because Mr. Solomon used a firearm throughout the fateful night to intimidate, terrorize, and beat the victim, the State could have reclassified the kidnapping charge to a life felony. See § 775.087(1)(a); Toro v. State, 691 So. 2d 576, 577 (Fla. 2d DCA 1997) (holding that kidnapping may be reclassified as a life felony if there is a specific finding by a jury that the defendant brandished a weapon). The State chose not to do so. The kidnapping offense remained a first-degree felo…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lamont v. State, 610 So. 2d 435 (Fla. 1992)
- State v. Vinney Tripp, 642 So. 2d 728 (Fla. 1994)
- Blotz v. State, 640 So. 2d 1240 (Fla. 2d DCA 1994)
- JOE v. State, 668 So. 2d 325 (Fla. 2d DCA 1996)