STEVEN YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We grant appellant’s motion for clarification, withdraw our previous opinion and substitute this opinion in its place.
We affirm on all issues except for one, involving appellant’s two convictions of aggravated battery. The trial court erred by reclassifying appellant’s two convictions to first-degree felonies under section 775.087(l)(b), Florida Statutes (2000). As charged and established at trial, the aggravated battery charges included a weapon or a firearm as “an essential element” within the meaning of section 775.087(1). See Lareau v. State, 573 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 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, with those counts classified as second-degree felonies.
GROSS, MAY, JJ., and DAMOORGIAN, DORIAN, Associate Judge, concur.
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Whitby v. State, 933 So. 2d 557 (Fla. 3d DCA 2006)…. 4th DCA 2004); Thomas v. State, 885 So. 2d 968 (Fla. 4th DCA 2004); Stephens v. State, 884 So. 2d 1071 (Fla. 5th DCA 2004); Russell v. State, 879 So. 2d 1261 (Fla. 3d DCA 2004); Alsopp v. State, 855 So. 2d 695 (Fla. 3d DCA 2003); Douglas v. State, 841 So. 2d 697 (Fla. 3d DCA 2003); Murray v. Haley, 833 So. 2d 877 (Fla. 1st DCA 2003); Daniels v. State, 837 So. 2d 1008 (Fla. 3d DCA 2002); Fleming v. State, 825 So. 2d 1027 (Fla. 1st DCA 2002); Shuler v. State, 816 So. 2d 257 (Fla. 2d DCA 2002); Rojas v. State,…
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State v. Whitby, 975 So. 2d 1124 (Fla. 2008)…not genuine); Russell v. State, 879 So. 2d 1261, 1262 (Fla. 3d DCA 2004) (reversing because the trial court incorrectly rejected the defense's facially-neutral reason and failed to assess the “genuineness of the proffered reason”); Douglas v. State, 841 So. 2d 697, 698 (Fla. 3d DCA 2003) (reversing in part because defense’s reasons for the challenge were race-neutral and legitimate); Daniels v. State, 837 So. 2d 1008, 1009 (Fla. 3d DCA 2002) (reversing because the trial court erred in finding the defense's re…
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Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004)…and Koch that because the aggravated battery offense was based on use of a deadly weapon or firearm, this crime cannot be additionally enhanced using section 775.087(2)(a); because the weapon is an essential element of the crime. See Young v. State, 841 So. 2d 697 (Fla. 4th DCA 2003); Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002). Sentence VACATED; REMANDED for Resentencing. GRIFFIN and TORPY, JJ., concur. . § 784.045(l)(a)2., Fla. Stat.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Osorio v. State, 746 So. 2d 490 (Fla. 2d DCA 1999)
- McCORMACK v. State, 728 So. 2d 335 (Fla. 2d DCA 1999)