JACK K. PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Perry challenges his postconviction motion's summary denial, claiming the trial court improperly reclassified his aggravated battery conviction from a second-degree to first-degree felony. The appellate court affirms denial of three claims but reverses the reclassification because the use of a deadly weapon was an essential element of the offense and therefore could not serve as grounds for enhancement.
The court reversed the reclassification. Reclassification is improper where the use of a weapon is an essential element of the offense. For the first count, the information explicitly cited the statutory provision for aggravated battery based on weapon use, precluding enhancement. For the second count, because the record did not establish conviction based solely on great bodily harm, enhancement was also not permitted.
[1] A conviction for aggravated battery cannot be reclassified to a first-degree felony under section 775.087(1), Florida Statutes, when the use of a weapon is an essential e…
[2] Where a charging document for aggravated battery alleges the use of a deadly weapon, enhancement under section 775.087(1), Florida Statutes, is precluded.
Previewing 2 of 5 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“reclassification is not proper where the use of a weapon is an essential element of the offense”
Establishes the core legal principle preventing enhancement when weapon use is part of the crime's definition.
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Join FLexlaw to unlock all legal intelligencePerry was charged with two counts of aggravated battery under separate charging documents. The first information charged aggravated battery with a wea…
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PER CURIAM.
The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of the appellant’s first three claims without comment; however, because the trial court improperly reclassified the appellant’s conviction for aggravated battery to a first-degree felony on the appellant’s guidelines scoresheet, we reverse.
The appellant alleges that the trial court scored an aggravated battery conviction as a first-degree felony when it should have been scored as a second-degree felony. Section 784.045, Florida Statutes (1991), states in pertinent part:
(1)(a) A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.
(2)Whoever commits aggravated battery shall be guilty of a felony of the second degree ...
Although aggravated battery is generally a second-degree felony, the trial court concluded that the appellant’s conviction was properly reclassified to a first-degree felony pursuant to section 775.087(1), Florida Statutes, based on the appellant’s use of a deadly weapon. However, reclassification is not proper where the use of a weapon is an essential element of the offense. See Lareau v. State, 573 So. 2d 813 (Fla.1991); Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002); § 775.087(1), Fla. Stat. (1991). Furthermore, where it is unclear whether the defendant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement is not permitted. See Montgomery v. State, 704 So. 2d 548, 550-51 (Fla. 1st DCA 1997).
Here, the appellant was charged with two counts of aggravated battery under two separate charging documents. The information filed in case number 91-5948 charges the appellant with “agg. batt. w/ weapon” and alleges that in the course of committing battery the appellant used a deadly weapon in violation of section 784.045(l)(a)2, Florida Statutes. It is clear that enhancement is precluded because the information alleges the use of a weapon and the statutory provision cited refers to aggravated battery based on the use of a deadly weapon. Indeed, the state concedes that the language of the information precludes enhancement pursuant to section 775.087(1), Florida Statutes. The information filed in case number 92-30, however, is not so clear as it charges the appellant with “aggravated battery GBH/weapon” and alleges that in the course of committing the offense, the appellant caused great bodily harm and used a deadly weapon in violation of sections 784.046(l)(a) and 775.087(1), Florida Statutes. Unlike the first information, the second information cites the statute relating to aggravated battery, but the cite is not specific so as to express whether the offense is based on great bodily harm or the use of a deadly weapon. The state contends that enhancement is proper because the language of the information does not make the use of a deadly weapon an essential element. However, because the record does not establish that the appellant was convicted of aggravated battery based solely on great bodily harm, enhancement is again not permitted. See Montgomery, 704 So. 2d at 550-51.
Due to the trial court’s error in reclassifying the appellant’s conviction, the appellant was improperly assessed eleven additional points for the two aggravated battery offenses. See Fla. R.Crim. P. 3.988(e). Not only will correction of the appellant’s guidelines scoresheet reduce his sentencing range by one cell, see Fla. R.Crim. P. 3.988(e), but it will also place his current fifteen-year sentence beyond the permitted sentencing range of five-and-a-half to twelve years. Therefore, the appellant is entitled to reversal on this claim. See Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001); Vitanzo v. State, 750 So. 2d 662, 663 (Fla. 1st DCA 1999); see also Desue v. State, 605 So. 2d 933, 935 (Fla. 1st DCA 1992).
Accordingly, we affirm the trial court’s order in regards to the appellant’s first three claims, but reverse the trial court’s denial of the appellant’s fourth claim, and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
BOOTH, BENTON and LEWIS, JJ., Concur.
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Citator
Cited By
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Roberts v. State, 923 So. 2d 578 (Fla. 5th DCA 2006)…J„ concur. . We would note, however, that section 775.087(1) is also regularly discussed as a "reclassification'' statute. See Stoute v. State, 915 So. 2d 1245 (Fla. 4th DCA 2005); Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004); Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003). Although our supreme court’s opinion in Mills v. State, 822 So. 2d 1284, 1288-89 (Fla.2002) seems to place some importance on the proper labeling of a statute (whether an "enhancement” provision or "reclassification” provision)…
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Oliver v. State, 75 So. 3d 349 (Fla. 1st DCA 2011)…or not the use of a deadly weapon, an automobile, was an essential element of the jury’s finding of “aggravated battery causing great bodily harm with a deadly weapon.” See Cabral v. State, 944 So. 2d 1026, 1027 (Fla. 1st DCA 2006); Perry v. State, 858 So. 2d 1270, 1271 (Fla. 1st DCA 2003). Oliver’s scoresheet should be corrected to reflect the proper points for a primary offense of aggravated battery, a second-degree felony, and the other score-sheet calculations should be adjusted accordingly. It appears…
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Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006)…ellant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement of his sentence for the use of a deadly weapon pursuant to section 775.087(1), Florida Statutes, was not permissible. Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003), and Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996). Accordingly, appellant’s life sentence is reversed, and the cause is remanded for resentencing of the offense as a second degree felony. The trial court’s finding that Cab…
Previewing 3 of 7 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)
- Desue v. State, 605 So. 2d 933 (Fla. 1st DCA 1992)
- Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001)
- IVY v. Moore, 782 So. 2d 450 (Fla. 1st DCA 2001)
- Montgomery v. State, 704 So. 2d 548 (Fla. 1st DCA 1997)
- Rico L. Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002)
- Vitanzo v. State, 750 So. 2d 662 (Fla. 1st DCA 1999)