WILSON OSORIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilson Osorio was convicted of third-degree murder and sentenced to 230 months imprisonment. The Florida appellate court reversed his sentence, holding that the trial court improperly reclassified the offense as a level 9 felony under section 775.087(1) when the use of a firearm was an essential element of the charged offense, not an aggravating factor.
The reclassification was error. When the information and jury instructions make the use of a firearm an essential element of the offense, that element cannot serve as the basis for reclassification under section 775.087(1). The offense should have been classified as a level 8 second-degree felony, resulting in a maximum sentence of 208 months.
[1] A defendant's sentence may be reversed when the trial court improperly reclassifies the offense based on the use of a weapon or firearm if the use of such weapon or firea…
[2] Third-degree murder is generally classified as a second-degree felony and a level 8 offense.
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“We recognize it is possible to commit a third-degree murder without a weapon or firearm. However, the information and the jury instruction in this case caused the use of a firearm, to be an essential element of the offense. Under these circumstances, the reclassification was error.”
The court's rationale for why firearm use cannot serve as the basis for reclassification when it is already an essential element of the offense charged and proven.
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Join FLexlaw to unlock all legal intelligenceOsorio was charged with first-degree murder for shooting Jose Perez-Medina with a firearm. He claimed self-defense, and the jury was instructed on the…
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[*491] PER CURIAM.
Wilson Osorio appeals his sentence of 230 months’ imprisonment for third-degree murder. Mr. Osorio contends that the trial court improperly reclassified this offense pursuant to section 775.087(1), Florida Statutes (1997), because the use of a firearm was an element of the charged offense. We agree, and thus reverse the sentence.
Mr. Osorio was charged with first-degree murder1 of Jose Perez-Medina. The information alleged that Mr. Osorio killed Mr. Perez-Medina by shooting him with a firearm. At trial, Mr. Osorio claimed that the shooting was not intentional or premeditated, but rather was committed in self-defense. Accordingly, the jury was instructed on the lesser-included offense of third-degree (felony) murder, based on the underlying felony of aggravated assault.2
The trial court instructed the jury that an aggravated assault was an intentional and unlawful threat made with the use of a deadly weapon, thereby creating a well-founded fear that violence is about to take place.3 Therefore, in order to find Mr. Osorio guilty of third-degree murder, the jury had to find that he committed an aggravated assault with a deadly weapon. The jury returned a verdict of guilty on this lesser-included offense.
The sentencing scoresheet listed the offense as “third-degree murder w/fa,” and classified the offense as a first-degree felony and a level 9 offense. The scoresheet provided for a sentencing range between 138 months and 230 months. The trial court sentenced Mr. Osorio to the maximum scoresheet sentence of 230 months.
Third-degree murder is a second-degree felony and a level 8 offense. See § 921.0012(3), Fla. Stat. (1997). The State argues that the level 9 classification on the scoresheet was the result of reclassification based upon section 775.087(1), which allows reclassification for use of a weapon or firearm. We recognize it is possible to commit a third-degree murder without a weapon or firearm. However, the information and the jury instruction in this case caused the use of a firearm, to be an essential element of the offense. Under these circumstances, the reclassification was error. See Gonzalez v. State, 585 So. 2d 932 (Fla.1991); Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989).
Properly classified, the offense in this case would result in a maximum scoresheet sentence of 208 months of imprisonment. Therefore, we reverse and remand for re-sentencing.
ALTENBERND, A.C.J., CASANUEVA and DAVIS, JJ., Concur. . See § 782.04(1)(a)(1), Fla. Stat. (1997).
. See §§ 782.04(4), 784.021(1)(a), Fla. Stat. (1997) (with a deadly weapon, without intent to kill).
. The trial court gave the standard jury instruction for aggravated assault committed with a deadly weapon without intent to kill. The trial court did not instruct the jury on aggravated assault as an assault made with an intent to commit a felony, see § 784.021(1)(b), nor would the evidence presented have supported such an instruction.
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Young v. State, 841 So. 2d 697 (Fla. 4th DCA 2003)…So. 2d 813, 815 (Fla.1991) (finding that aggravated battery predicated on use of a deadly weapon is not subject to reclassification pursuant to section 775.087(1) because the use of the weapon is an essential element of the crime); 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 199…
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Booth v. State, 18 So. 3d 1142 (Fla. 5th DCA 2009)…hird degree felony murder could not be reclassified to a first degree felony for use of a firearm because the indictment and jury instructions made the firearm an essential element of the charge for which Booth was convicted, citing Osorio v. State, 746 So. 2d 490 (Fla. 2d DCA 1999). Again, this concession was proper. The felony underlying Booth’s murder conviction was aggravated assault with use of a firearm. Because Booth’s use of a firearm was an essential element of the offense, as charged and proven, the…
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Collazo v. State, 936 So. 2d 782 (Fla. 4th DCA 2006)…ted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. § 775.087(1), (2)(a)l., 3., Fla. Stat. (2005). In Osorio v. State, 746 So. 2d 490, 491 (Fla. 2d DCA 1999), the appellant was charged with first-degree murder; the information alleged the appellant killed the victim by “shooting him with a firearm.” The jury was instructed on the lesser-included offense of third-degree (felony) mu…
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
- Gonzalez v. State, 585 So. 2d 932 (Fla. 1991)
- Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989)