DAVID ANDERSON MCCORMACK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed McCormack's convictions for attempted first-degree murder, armed sexual battery, aggravated battery, and attempted armed kidnapping, but remanded to correct an improper sentence enhancement that reclassified an aggravated battery to life when the deadly weapon was an essential element of the offense.
A trial court cannot enhance an aggravated battery sentence to life under the deadly weapon statute when the use of a deadly weapon is an essential element of the offense itself.
[1] When the use of a deadly weapon is an essential element of an aggravated battery offense under section 784.045(1)(a)2, Florida Statutes, the trial court cannot enhance th…
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Join FLexlaw to unlock all legal intelligenceMcCormack was convicted of attempted first-degree murder, armed sexual battery, three counts of aggravated battery, and two counts of attempted armed …
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PATTERSON, Acting Chief Judge.
David McCormack appeals from his judgments and sentences for attempted first-degree murder, armed sexual battery, three counts of aggravated battery, and two counts of attempted armed kidnapping. We affirm McCormack’s convictions, but remand for the correction of his sentence in case number 96-1608.
In count three of case number 96-1608, the information alleged that McCormack “actually and intentionally did touch or strike another person ... and in so doing did use a deadly weapon, to-wit, a knife, in violation of section 784.045, Florida Statutes.” The trial court enhanced McCormack’s sentence for the aggravated battery, a second-degree felony, to a life sentence for the use of a deadly weapon under section 775.087(1), Florida Statutes (1995). This was error. It is improper to reclassify an aggravated battery charged under section 784.045(1)(a)2, Florida Statutes (1995), to a life felony when the use of a deadly weapon is an essential element of the offense. See Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996). Accordingly, we reverse and remand for the correction of the sentence for count three to thirty years under the habitual offender statute. See § 775.084(4)(b)2, Fla. Stat. (1995).
Affirmed in part; remanded for correction of sentence.
BLUE and WHATLEY, JJ., Concur.
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McCLELLION v. State, 858 So. 2d 379 (Fla. 4th DCA 2003)…nvictions for aggravated assault and fleeing an accident to be vacated.2 Reversed. POLEN and STEVENSON, JJ., concur. . Some courts, including this one, have suggested in dicta that venue is an essential element of a charged crime. Brown v. State, 728 So. 2d 335, 336 (Fla. 4th DCA 1999); Mosley v. State, 842 So. 2d 855, 857 (Fla. 1st DCA 2002). Since our supreme court has held that venue need not be proved beyond a reasonable doubt, Croft, it follows that venue is not an element of the crime. See Pennick v.…
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Young v. State, 841 So. 2d 697 (Fla. 4th DCA 2003)…Osorio v. State, 746 So. 2d 490, 491 (Fla. 2d DCA 1999) (holding that reclassification was error because the information and jury instructions established that the use of a firearm was an essential element of aggravated assault); McCormack v. State, 728 So. 2d 335 (Fla. 2d DCA 1999) (holding that aggravated battery charge should not be reclassified when use of a deadly weapon is an essential element of the offense). This case is remanded to the circuit court for resentencing on the two aggravated batteries,…
Authorities Cited
- Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996)