LEONEL RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence imposed for aggravated assault was illegal because the statute defining the crime already includes the use of a deadly weapon.
Rodriguez pleaded guilty to second-degree murder and aggravated assault with a firearm. He was sentenced to fifteen years for aggravated assault, a th…
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[*1195] PER CURIAM.
Leonel Rodriguez appeals the summary denial of his motion for postconvietion relief in which he raised two issues. Only the argument that the sentence imposed for aggravated assault is illegal has merit. Rodriguez must be resentenced.
Rodriguez entered into a negotiated plea agreement to plead guilty to second-degree murder and aggravated assault with a firearm. He now complains that he was illegally sentenced to a term of fifteen years’ imprisonment for the third-degree felony of aggravated assault. In its order denying the motion, the trial court indicates that the sentence is legal because the third-degree felony was enhanced to a second-degree felony due to Rodriguez’s use of a firearm. This conclusion is erroneous.
Pursuant to section 784.021, Florida Statutes (1993), aggravated assault is a third-degree felony which specifically defines the crime as an assault “[w]ith a deadly weapon without intent to kill.” Therefore, a deadly weapon is an essential part of the crime. In order to impose a legal sentence, the trial court must resentence Rodriguez to a maximum sentence of five years’ imprisonment with a three-year minimum mandatory term.
Affirmed in part, reversed in part, and remanded for resentencing.
ALTENBERND, A.C.J., and BLUE and WHATLEY, JJ., concur.
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Baldwin v. State, 857 So. 2d 249 (Fla. 2d DCA 2003)…rt of the proof of the underlying crime, which was an enhanced penalty offense, the court held that enhancement of the sentence for use of a firearm, under another statute, was improper. This court reached a similar conclusion in Rodriguez v. State, 701 So. 2d 1194, 1195 (Fla. 2d DCA 1997), involving the use of a deadly weapon, again, a firearm. See also Greer v. State, 804 So. 2d 620, 621 (Fla. 3d DCA 2002) (concluding that "there was substantial competent evidence to support the conclusion that the defendant…