ROBERT P. GAUSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in enhancing the defendant's sentence for aggravated battery with a firearm, as this crime is not subject to reclassification under the relevant statute.
The defendant was convicted of burglary and aggravated battery with a firearm. The trial court enhanced the aggravated battery conviction from a secon…
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PER CURIAM.
Robert Paul Gause appeals the summary denial of his motion for postconviction relief in which he asserted three grounds of error. We agree that the trial court failed to adequately refute Gause’s argument that his sentence was improperly enhanced. Accordingly, we reverse and remand for consideration of this single issue.
Gause was charged with first-degree burglary and attempted second-degree murder with a firearm. The jury convicted him of burglary as charged. However, rather than attempted murder, the jury found him to be guilty of the lesser included offense of aggravated battery with a firearm. At sentencing, the court enhanced the offense of aggravated battery with a firearm from a second-degree felony to a first-degree felony pursuant to section 775.087, Florida Statutes (1993). Gause asserts that it was error for the trial court to employ this enhancement and trial counsel was ineffective for failing to object at sentencing.
The supreme court has held that such an enhancement is improper. See Lareau v. State, 573 So. 2d 813 (Fla.1991). Aggravated battery with the use of a deadly weapon is not subject to reclassification pursuant to section 775.087(1), because the use of a weapon is an essential element of the crime. See Wingate v. State, 590 So. 2d 1108 (Fla. 2d DCA 1991).
It is, thus, ordered that the denial of the motion for postconviction relief as to this issue is reversed and remanded for reconsideration. On remand, if the court again concludes that summary denial is proper, it must attach to its order those portions of the case file and record which refute Gause’s claim. In all other respects, the denial of the motion for postconviction relief is affirmed.
Affirmed in part, reversed in part, and remanded.
PARKER, A.C.J., and FULMER and SALCINES, JJ., Concur.
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Citator
Cited By
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Wallen v. State, 860 So. 2d 1054 (Fla. 5th DCA 2003)…als, both of which were related to denials of Rule 3.850 motions on different grounds than are raised here. The motion is sufficient enough, however, to require the attachment of parts of the record to refute Mr. Wallen’s claims. See Gause v. State, 739 So. 2d 1170 (Fla. 2d DCA 1999); cf., Smith v. State, 729 So. 2d 496 (Fla. 5th DCA 1999). In response, the State properly acknowledges that the order is insufficient because the trial court failed to attach portions of the record to refute the defendant’s clai…
Authorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Wingate v. State, 590 So. 2d 1108 (Fla. 2d DCA 1991)