TYRONE DAVID MOSBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed defendant's convictions on four issues but reversed the enhancement of aggravated battery from first-degree to second-degree felony due to lack of clear jury finding that defendant used a firearm.
A trial court errs in enhancing an aggravated battery charge to a first-degree felony without a clear jury finding that the defendant used a firearm during commission of the crime.
[1] An aggravated battery charge cannot be enhanced to a first-degree felony without a clear jury finding that the defendant used a firearm during commission of the crime.
Previewing 1 of 1 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“[T]he enhanced penalty [must] be predicated upon a 'clear jury finding' that the defendant possessed a firearm during the commission of the felony.”
Court cited Roberts v. State for the requirement that firearm enhancement requires explicit jury finding.
Tyrone Mosby was convicted of charges related to two shootings and appealed his judgment and sentence on five grounds.…
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Tyrone Mosby (“Defendant”) appeals his judgment and sentence for a series of charges pertaining to two shootings. Defendant raises five issues upon appeal, arguing that the trial court erred in: 1) denying his motion for new trial based upon alleged discovery violations; 2) preventing him from commenting upon the State’s decision not to call a witness during trial; 3) sustaining the State’s objection to a defense comment during closing argument that the reporting witness may have been the shooter; 4) finding Defendant competent to proceed to sentencing; and 5) enhancing his aggravated battery charge from a second-degree felony to a first-degree felony. We affirm the first four issues without further discussion.
However, the trial court erred in enhancing Defendant’s aggravated battery charge without a clear finding that he used a firearm in the commission of the crime. See Roberts v. State, 152 So.3d 669, 672 (Fla. 4th DCA 2014) (“[T]he enhanced penalty [must] be predicated upon a ‘clear jury finding’ that the defendant possessed a firearm during the commission of the felony.”). Based upon the State’s concession of error, we reverse the sentence imposed for aggravated battery and remand for resentencing on that charge as a second-degree felony.
AFFIRMED in part; REVERSED in part; REMANDED.
SAWAYA, EVANDER and LAMBERT, JJ., concur.