ANDRE EDWARDS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andre Edwards appealed his conviction and sentence for aggravated battery with discharge of a firearm. The court affirmed the conviction but vacated the sentence because the trial court improperly reclassified the offense as a first-degree felony; the offense is a second-degree felony subject to a 20-year mandatory minimum sentence under Florida's 10-20-life statute.
The offense with which Edwards was convicted was properly charged, and the jury's failure to convict of the reclassified offense did not preclude conviction of aggravated battery with discharge of a firearm. Aggravated battery with a firearm is a second-degree felony not subject to reclassification under section 775.087(1), but Edwards is subject to a mandatory 20-year minimum sentence under the 10-20-life statute because he actually discharged the firearm during commission of the felony.
[1] A conviction for aggravated battery with discharge of a firearm is permissible even if the jury fails to convict of aggravated battery reclassified while inflicting great…
[2] Aggravated battery with a firearm is not subject to reclassification under section 775.087(1) because the use of a firearm is an essential element of the crime.
Previewing 2 of 4 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“aggravated battery with a firearm is not subject to reclassification pursuant to section 775.087(1) because the use of a firearm is an essential element of the crime.”
Establishes that aggravated battery with a firearm cannot be reclassified as a first-degree felony
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Join FLexlaw to unlock all legal intelligenceAndre Edwards was convicted of aggravated battery with discharge of a firearm. The evidence showed that Edwards committed an aggravated battery when h…
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Andre Edwards appeals his conviction and sentence for aggravated battery with discharge of a firearm. He asserts variously that he was convicted of a crime not charged or that the jury’s failure to convict him of “aggravated battery reclassified while inflicting great bodily harm or death” precluded his conviction of aggravated battery with discharge of a firearm. We find no merit to either iteration of this claim. The offense of which he was convicted was charged, and the failure of the jury to convict of the “aggravated battery reclassified” would not preclude conviction of aggravated battery.
We agree, however, with appellant’s claim that his conviction for aggravated battery with a firearm should not have been reclassified as a first degree felony and that he, therefore, should have been sentenced to twenty years, not a twenty-five year term of imprisonment. The State implicitly concedes the error:
It is equally clear that “[ajggravated battery with a firearm is not subject to reclassification pursuant to section 775.087(1) because the use of a firearm is an essential element of the crime.” Jacobs; Lareau v. State, 578 So.2d 818 (Fla.1991); Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996).
However, under Section 775.087(2)(a)(2), the Defendant is subject to a 20 year minimum mandatory sentence, even though the aggravated battery is a second degree felony. Under the statute, known as the 10-20-life statute, the minimum mandatory sentence is required regardless of whether the use of a firearm is an element of the crime, if the Defendant actually discharged the firearm during the commission of the felony-
In the instant case, the evidence showed — and the jury found — that the Defendant committed an aggravated battery when he shot the victim. The jury clearly found that the Defendant discharged the firearm during the commission of the felony. Therefore, the Defendant is subject to the 20 year minimum mandatory sentence, even if his felony is a second degree felony.
We accordingly affirm the conviction, but vacate the sentence and remand for resen-tencing.
*698AFFIRMED in part; sentence VACATED; and REMANDED.
GRIFFIN, PALMER and JACOBUS, JJ., concur.
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Citator
Cited By
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Montrell L. Johnson v. State, 149 So. 3d 727 (Fla. 5th DCA 2014)…a firearm is an element of the crime, the minimum mandatory sentence is required here because, as the jury found, Johnson actually discharged a firearm during the commission of the felony. See § 775.087(2)(a)2., Fla. Stat. (2007); Edwards v. State, 108 So. 3d 696, 697 (Fla. 5th DCA 2013) (holding that defendant’s aggravated battery with firearm conviction should not have been reclassified as first-degree felony, and therefore, he should have been sentenced to twenty-year, not twenty-five-year, imprisonment t…
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King v. State, 110 So. 3d 968 (Fla. 4th DCA 2013)…offense cannot be reclassified under section 775.087(1), Florida Statutes (2009). Higgins v. State, 890 So. 2d 519, 519 (Fla. 4th DCA 2005). Accordingly, we reverse and remand for re-sentencing in accordance with this opinion. See Edwards v. State, 108 So. 3d 696 (Fla. 5th DCA 2013); Termitus v. State, 86 So. 3d 1179, 1181 (Fla. 5th DCA 2012). Affirmed in part, reversed in part, and remanded. DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.…
Authorities Cited
- Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996)
- Booker v. State, 578 So. 2d 818 (Fla. 4th DCA 1991)