JANIE BELL WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Janie Bell Williams was convicted of aggravated assault instead of murder and sentenced to 6 months to 15 years. The Florida Fourth District Court of Appeal reversed her sentence, holding that the maximum penalty for aggravated assault under Florida law is five years, not fifteen, and remanded for resentencing.
The court held that the maximum sentence for aggravated assault under Section 784.021, Florida Statutes (1975), is five years because it is a felony in the third degree, and Section 775.082(3)(d) sets a five-year maximum for third-degree felonies. The enhanced penalty statute under Section 775.087(1)(c) does not apply because aggravated assault is already an enhanced offense (penalizing assault more heavily when a weapon is used), and the statute specifically excludes felonies where weapon use is an essential element.
[1] The maximum sentence for aggravated assault under Section 784.021, Florida Statutes (1975), is five years, as it is a third-degree felony.
[2] The enhanced penalty statute, Section 775.087(1)(c), does not apply to aggravated assault when a weapon is used, because the use of a weapon is an essential element of th…
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Join FLexlaw to unlock all legal intelligence“The maximum sentence under Section 784.021, Florida Statutes (1975) Aggravated Assault, is five years because it is a felony in the third degree.”
Establishes the controlling statutory maximum penalty for the offense of conviction.
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Join FLexlaw to unlock all legal intelligenceAppellant Williams was charged with murder in the first degree but was instead convicted by jury of aggravated assault with a weapon. She was sentence…
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[*188] DAUKSCH, Judge.
Appellant was charged with murder in the First Degree and convicted of aggravated assault. She was sentenced to the penitentiary for an indeterminate period from six months to fifteen years. Although she has not appealed her sentence we must reverse it because it is clearly error. The maximum sentence under Section 784.021, Florida Statutes (1975) Aggravated Assault, is five years because it is a felony in the third degree. Section 775.082 3(d) provides a maximum of five years for felonies of the third degree. Lest the appellee come beckoning that the “enhanced penalty statute”, Section 775.087(l)(c) applies since a weapon was used, we say it does not apply because aggravated assault is an assault with a weapon and that statute specifically excludes “a felony in which the use of a weapon or firearm is an essential element . . .” The crime of aggravated assault is already an enhanced penalty statute. It makes the penalty greater than an assault, Section 784.011, Florida Statutes (1975), if a weapon is used or a felony is intended. We do not reach the question as to whether an enhancement of the penalty is available if the accused is convicted of an aggravated assault by assaulting with the intent to commit a felony and a weapon is used. This case is not the proper case to do so because the verdict of the jury was “guilty of aggravated assault with a weapon” and the judgment on the verdict reads the same. See Butler v. State, 343 So. 2d 93 (Fla. 3 DCA 1977).
The judgment is affirmed and the sentence is reversed. The cause is remanded for proper sentencing in accordance with this opinion, for a period no longer than five years.
REVERSED and REMANDED.
ANSTEAD, J., and CRAWFORD, GRADY L., Associate Judge, concur.