JOSEPH J. CABRAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's life sentence for aggravated battery was reversed because the trial court impermissibly enhanced the sentence for use of a deadly weapon when the jury verdict was ambiguous as to whether conviction rested on great bodily harm or weapon use.
A trial court cannot enhance a sentence for use of a deadly weapon under section 775.087(1) when the jury verdict is ambiguous as to whether the aggravated battery conviction was based on great bodily harm or weapon use.
[1] When a jury verdict on aggravated battery includes alternative findings of both great bodily harm and deadly weapon use without clarifying which basis supports the convic…
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Join FLexlaw to unlock all legal intelligenceJoseph Cabral was convicted of aggravated battery. The jury found that he knowingly and intentionally caused great bodily harm, permanent disability, …
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PER CURIAM.
Joseph J. Cabral challenges the enhancement of his aggravated battery conviction to a first degree felony for use of a weapon during the commission of the offense. The elements of aggravated battery under section 784.045(l)(a), Florida Statutes (2003), include committing battery “[i]ntentionally or knowingly eaus[ing] great bodily harm, permanent disability or permanent disfigurement; or ... [using] a deadly weapon.” Here, the verdict returned by the jury included findings that appellant knowingly and intentionally caused great bodily harm, permanent disability and permanent disfigurement; that appellant used a weapon; and that appellant used a deadly weapon. In addition, the judgment of conviction describes the offense as “aggravated battery with great bodily harm and with a deadly weapon.” Thus, it cannot be said that appellant’s conviction for aggravated battery was not based on the use of a deadly weapon. Because it is unclear whether appellant 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 Cabral is subject to sentencing as a violent career criminal is not affected by this decision.
REVERSED and REMANDED for re-sentencing.
ERVIN, BARFIELD and VAN NORTWICK, JJ., concur.
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Oliver v. State, 75 So. 3d 349 (Fla. 1st DCA 2011)…on 775.087(1) because it is unclear from the record whether 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-she…
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Webb v. State, 997 So. 2d 469 (Fla. 2d DCA 2008)…we find that the use of a weapon became an essential element of the offense and cannot be used to reclassify the degree of felony. Id. at 1353 (citation omitted); see Crawford v. State, 858 So. 2d 1131 (Fla. 2d DCA 2003) (accord); Cabral v. State, 944 So. 2d 1026, 1027 (Fla. 1st DCA 2006) (“[Bjecause it is unclear whether appellant 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…
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Hurry v. State, 978 So. 2d 854 (Fla. 1st DCA 2008)…1), Fla. Stat. As indicated in section 775.087(1), a degree reclassification pertains when the offense is committed with the use of a weapon, unless the use of the weapon is an essential element of the crime. The appellant relies on Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006), where this court was unable to determine whether an aggravated battery conviction was based on great bodily harm or the use of a deadly weapon, and a § 775.087(1) reclassification was therefore precluded. See also, Perry v. Stat…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996)
- Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003)