DERRICK R. CHASE, A/K/A DERRICK RYAN CHASE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's sentence cannot be enhanced under section 775.087(1) without evidence of personal possession of the weapon.
The defendant was convicted of aggravated battery. The trial court reclassified the offense from a second-degree to a first-degree felony based on wea…
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Derrick R. Chase appeals his judgment and sentence for aggravated battery with great bodily harm and the use of a deadly weapon following a jury trial. He raises two arguments on appeal. First, Mr. Chase challenges the circuit court’s exclusion of certain impeachment evidence about a State witness. This argument is without merit and does not warrant further discussion.
Mr. Chase also argues that the circuit court improperly reclassified his offense from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2009). The circuit court reclassified the offense under the statute based upon the use of a weapon during the offense. However, the evidence shows that only Mr. Chase’s codefendant possessed and used the weapon during the offense. On appeal, the State concedes error. We agree with the parties that the circuit court erred in reclassifying Mr. Chase’s offense. “[W]hen a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.” State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992); see also Porter v. State, 737 So.2d 1119, 1119 (Fla. 2d DCA 1999) (citing Rodriguez for the proposition “that section 775.087(1) does not permit vicarious enhancement”).
Accordingly, we affirm Mr. Chase’s conviction for aggravated battery with great bodily harm and the use of a deadly weapon. On remand, the circuit court shall correct the judgment to reflect Mr. Chase’s conviction for a second-degree felony. We reverse Mr. Chase’s sentence and remand for resentencing without reclassification under section 775.087(1).
Affirmed in part and reversed and remanded in part.
SILBERMAN, C.J., and MORRIS, J., Concur.
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Citator
Cited By
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Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)…oneous. The majority’s legal conclusion contradicts years of case authority interpreting section 775.087(1) as requiring that the defendant must personally possess the weapon used in the commission of the crime so charged. See e.g., Chase v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed…1 / 2
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Castillo v. State, 217 So. 3d 1110 (Fla. 3d DCA 2017)…murder could not be reclassified under section 775,087(1) based on a co-defendant’s possession or use of a weapon or firearm during the commission of the murder.”); see also Campbell v. State, 935 So. 2d 614, 618 (Fla. 3d DCA 2006); Chase v. State, 74 So. 3d 1138, 1139 (Fla. 2d DCA 2011). . Although not necessary to this Court's analysis to reverse Castillo's reclassification under section 775.087(l)(a), we note that the State's argument that Castillo’s conviction was properly reclassified suffers from an a…
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Postaski v. State, 203 So. 3d 967 (Fla. 2d DCA 2016)…the felony.” State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla.1992); Porter v. State, 737 So. 2d 1119, 1119 (Fla. 2d DCA 1999) (recognizing that Rodriguez held that “section 775.087(1) does not permit vicarious enhancement”); see also Chase v. State, 74 So. 3d 1138, 1139 (Fla. 2d DCA 2011) (holding that circuit court erred in reclassifying defendant’s offense where evidence showed that only codefendant “possessed and used the weapon during the offense” and reversing for resentencing without section 775.087(1)…
Authorities Cited
- State v. Anibal Rodriguez, 602 So. 2d 1270 (Fla. 1992)
- Porter v. State, 737 So. 2d 1119 (Fla. 2d DCA 1999)