JEROME KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed convictions for attempted first-degree murder and attempted robbery with a firearm but reversed the reclassification of attempted robbery with a firearm to a first-degree felony, holding that the firearm element cannot support reclassification under section 775.087(1).
Because the use of a firearm is an essential element of attempted robbery with a firearm, the offense cannot be reclassified to a first-degree felony under section 775.087(1), Florida Statutes.
[1] When a firearm is an essential element of a crime, the offense cannot be reclassified to a higher felony degree under section 775.087(1), Florida Statutes.
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Join FLexlaw to unlock all legal intelligenceJerome King was convicted of attempted first-degree murder and attempted robbery with a firearm and sentenced to thirty years in prison with a twenty-…
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Appellant appeals his convictions for attempted first-degree murder and attempted robbery with a firearm and his sentences of thirty years in prison with a twenty-five year minimum mandatory. In the first two issues, appellant argues he should have been allowed to cross-examine witnesses concerning potential sentences they would face for uncharged crimes and that a detective’s unobjected-to testimony constituted hearsay. We affirm these issues, as they are without merit. In the third issue, appellant contends that the trial court erred in reclassifying the attempted robbery with a firearm to a first-degree felony and sentencing him to thirty *969years in prison. Appellant does not challenge the imposition of the twenty-five year minimum mandatory sentence under section 775.087(2)(a)3., Florida Statutes (2009). We agree that the reclassification was in error. Because the use of a firearm is an essential element of attempted robbery with a firearm, the 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Chestley Higgins v. State, 890 So. 2d 519 (Fla. 4th DCA 2005)
- Luc Termitus v. State, 86 So. 3d 1179 (Fla. 5th DCA 2012)
- Edwards v. State, 108 So. 3d 696 (Fla. 5th DCA 2013)