CARMEN OLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carmen Oliver appeals her conviction for aggravated battery causing great bodily harm with a deadly weapon, challenging the trial court's reclassification of the offense from a second-degree to first-degree felony and the imposition of costs and fines without proper statutory authority or oral pronouncement. The court affirmed the conviction but reversed and remanded for resentencing due to the sentencing errors.
The trial court erred in both respects. The reclassification was improper because it is unclear whether the use of a deadly weapon was an essential element of the jury's verdict, which would preclude reclassification under section 775.087(1). The imposition of fines and costs was improper because the trial court failed to provide statutory authority, proper notice, and individual oral pronouncement of each assessment.
[1] A trial court errs by reclassifying a second-degree felony to a first-degree felony under § 775.087(1) if the use of a weapon is an essential element of the underlying of…
[2] A conviction for aggravated battery causing great bodily harm with a deadly weapon is a second-degree felony unless reclassified.
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Join FLexlaw to unlock all legal intelligence“The trial court erred by classifying Oliver's offense as a first-degree felony under section 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."”
Establishes the error in reclassification when it is unclear whether weapon use was an essential element of the offense
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Join FLexlaw to unlock all legal intelligenceCarmen Oliver was convicted of aggravated battery causing great bodily harm with a deadly weapon. The trial court reclassified this offense from a sec…
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Carmen Oliver challenges her conviction for aggravated battery causing great bodily harm with a deadly weapon and raises two arguments for improper sentencing: First, that the trial court erred by reclassifying her conviction for aggravated battery causing great bodily harm with a deadly weapon from a second-degree felony to a first-degree felony; and second, that the trial court erred by imposing costs and fines which were not orally pronounced at the sentencing hearing. The state properly concedes error in regard to both sentencing issues. We affirm Oliver’s conviction without discussion, but remand for resentencing.
The trial court improperly imposed fines and costs by failing to provide the statutory authority for the discretionary fines at sentencing and by failing to provide an explanation as to what the costs represent. See Smiley v. State, 704 So.2d 191, 195 (Fla. 1st DCA 1997); Reyes v. State, 655 So.2d 111, 116 (Fla. 2d DCA 1995). On remand, the trial court may reimpose the assessments after providing Oliver notice and by following the proper procedure, which includes individually announcing each assessment and the authority for each. See Brooks v. State, 672 So.2d 828, 829 (Fla. 2d DCA 1995).
Section 784.045, Florida Statutes (2009), provides that a person may be convicted of aggravated battery, a second-degree felony, either by causing great bodily harm or by using a deadly weapon during the commission of the battery. Section 775.087(1), Florida Statutes (2009), provides for the reclassification of a second-degree felony to a first-degree felony if it was committed with the use of a weapon or firearm, unless the use of a weapon or firearm is an essential element of the crime. See Lareau v. State, 573 So.2d 813, 814-15 (Fla.1991). The trial *351court erred by classifying Oliver’s offense as a first-degree felony under section 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-sheet calculations should be adjusted accordingly. It appears that even after adjusting the scoresheet, Oliver’s 10-year sentence may still be within the guidelines. However, even where the sentence imposed is still within the permitted range after recalculating the scoresheet, the sentence imposed should be vacated and the cause remanded for resentencing upon a corrected scoresheet “to assure that a defendant was not sentenced and is not being confined because of a mistaken judicial impression based on an inaccurate guidelines scoresheet.” Lawrence v. State, 590 So.2d 1068, 1069-70 (Fla. 5th DCA 1991).
Accordingly, the judgment of conviction is AFFIRMED; the sentence is REVERSED, and the case is REMANDED for resentencing based upon a corrected scoresheet. Further, the trial court is instructed to assess costs and fines with proper notice to Oliver and with proper reference to statutory authority before re-sentencing.
DAVIS, PADOVANO, and ROWE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (11 total)
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NIX v. State, 84 So. 3d 424 (Fla. 1st DCA 2012)…ionary fine(s) when announcing at sentencing that it would impose $1,522.50 in costs and fines,” and stating that the assessments may be reimposed on remand after giving Appellant notice and following the proper procedure); see also Oliver v. State, 75 So. 3d 349, 350 (Fla. 1st DCA 2011) (reversing the imposition of discretionary fines and authorizing the court to reimpose the fines on remand “by following the proper procedure, which includes individually announcing each assessment and the authority for each…
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Odom v. State, 187 So. 3d 324 (Fla. 1st DCA 2016)…hearing. See, e.g., Nix v. State, 84 So. 3d 424, 426 (Fla. 1st DCA 2012). The trial court may reimpose the discretionary fine and surcharge on remand after giving Appellant notice and following the proper procedure. See, e.g., id.; Oliver v. State, 75 So. 3d 349, 350 (Fla. 1st DCA 2011). The trial court further erred in failing to provide Appellant an opportunity to contest the imposition of the public defender lien and application fee in excess of the minimum statutory amount. Pursuant to sections 938.29…
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Drayton v. State, 89 So. 3d 287 (Fla. 1st DCA 2012)…. State, 55 So. 3d 674, 675 (Fla. 1st DCA 2011); Smiley v. State, 704 So. 2d 191, 195 (Fla. 1st DCA 1997). On remand, the trial court may reimpose the assessments after giving Appellant notice and following the proper procedure. See Oliver v. State, 75 So. 3d 349, 350 (Fla. 1st DCA 2011). We further instruct the court on remand to correct scrivener’s errors in the Criminal Punishment Code score sheet and the Order of Probation reflecting that Appellant pled nolo contendere; the documents should reflect he wa…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Smiley v. State, 704 So. 2d 191 (Fla. 1st DCA 1997)
- Fredrick M. Lawrence v. State, 590 So. 2d 1068 (Fla. 5th DCA 1991)
- Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006)
- Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003)
- Brooks v. State, 672 So. 2d 828 (Fla. 2d DCA 1995)