DENNIS METZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dennis Metz appealed his conviction for aggravated battery after the trial court reclassified the offense from a second-degree felony to a first-degree felony under Florida Statute § 775.087(1)(b). The appellate court reversed, holding that the trial court erred because the jury verdict form did not clearly establish which type of aggravated battery (great bodily harm or use of deadly weapon) the jury found, and the deadly-weapon type is exempt from reclassification.
The court reversed and remanded for resentencing because the trial court erred in reclassifying the offense. The verdict form's ambiguity regarding which type of aggravated battery the jury found creates a reasonable possibility that the jury based its verdict on the deadly-weapon type, for which reclassification is improper.
[1] A second degree felony may be reclassified as a first degree felony under section 775.087, Florida Statutes, if the defendant used or possessed a weapon or firearm during…
[2] Aggravated battery with a deadly weapon, as defined by section 784.045(1)(b), Florida Statutes, does not permit reclassification to a first degree felony under section 77…
Previewing 2 of 3 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“Section 775.087(1) requires that a second-degree felony be reclassified to a first-degree felony when a weapon or firearm is used to commit the felony, except a felony in which the use of a weapon or firearm is an essential element.”
Establishes the legal standard for when reclassification is permitted under Florida law.
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Join FLexlaw to unlock all legal intelligenceMetz was convicted of aggravated battery. The trial court instructed the jury that it could find Metz guilty of aggravated battery based on either gre…
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Dennis Metz challenges his judgment and sentence for aggravated battery. Because the trial court erred by reclassifying *33the offense from a second-degree felony to a first-degree felony, pursuant to section 775.087(l)(b), Florida Statutes (2006), we reverse and remand for the trial court to resentence Metz for a second-degree felony.
“Section 775.087(1) requires that a second-degree felony be reclassified to a first-degree felony when a weapon or firearm is used to commit the felony, except a felony in which the use of a weapon or firearm is an essential element.” Webb v. State, 997 So.2d 469, 471 (Fla. 2d DCA 2008). While aggravated battery based on the infliction of great bodily harm would be subject to reclassification under this section, the deadly-weapon type of aggravated battery is ■ not, because use of a weapon is an essential element. Id.
Here, the jury was instructed that it could find Metz guilty of aggravated battery either by finding great bodily harm or use of a deadly weapon. The verdict form provided, as a choice of a lesser included offense 1
_GUILTY OF AGGRAVATED BATTERY, a lesser included offense, and we further find that during the commission of said felony the defendant: (Check only one if found guilty of aggravated battery)
_Did use or threaten to use or attempt to use a weapon.
_Did not use or threaten to use or attempt to use a weapon.
Thus, the jury was left only with the option of finding that he committed aggravated battery either by using or threatening or attempting to use a deadly weapon or by not using or threatening .or attempting to use a deadly weapon. The jury was not provided with the express option of finding Metz guilty based solely on great bodily injury.
We recognize that because the jury was provided with the option of finding Metz guilty of aggravated battery even where Metz did not use or threaten to use or attempt to use a weapon, there is an implication that the jury in this case did have the option of selecting bodily-injury aggravated battery without the use of a weapon. Cf. Webb, 997 So.2d at 470-71 (noting that where verdict form reflected two forms of aggravated battery, but both involved the use of a firearm, the jury was not given the option of choosing the bodily-injury type of aggravated batteiy without the use of a firearm). And the jury’s finding that Metz did use or threaten to use or attempt to use a weapon could be construed as a separate enhancement decision by the jury. Yet, based on the verdict form itself,, which nowhere expressly specified that there were two types of aggravated battery, we cannot rule out the possibility that the jury was basing its verdict on the deadly-weapon type of aggravated battery for which reclassification is improper. See Webb, 997 So.2d at 471; see also Crawford v. State, 858 So.2d 1131, 1132 (Fla. 2d DCA 2003). Accordingly, we reverse and remand for resentencing.
Reversed and remanded.
WHATLEY and KHOUZAM, JJ„ Concur.
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Citator
Cited By
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Hernandez v. State, 30 So. 3d 610 (Fla. 3d DCA 2010)…cting great bodily harm may be enhanced, but an aggravated battery using a deadly weapon may not be enhanced because use of a firearm is already an essential element of the crime. See, e.g., Lareau v. State, 573 So. 2d 813 (Fla.1991); Metz v. State, 15 So. 3d 32 (Fla. 2d DCA 2009); Benjamin v. State, 8 So. 3d 460 (Fla. 4th DCA 2009); Torris v. State, 611 So. 2d 57 (Fla. 3d DCA 1992). Sometimes it is unclear whether the jury found the defendant guilty of one or the other form of aggravated battery. In such…
Authorities Cited
- Webb v. State, 997 So. 2d 469 (Fla. 2d DCA 2008)
- Errol Crawford v. State, 858 So. 2d 1131 (Fla. 2d DCA 2003)