ANDRA LAVON GRIFFIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Griffin challenges his 17-year sentence for aggravated battery, arguing the sentence exceeds the statutory maximum for a second-degree felony. The court agreed that the sentence was unlawful and remanded for correction to 15 years, the proper maximum, and to vacate improperly imposed costs.
The sentence of 17 years for the aggravated battery count exceeded the statutory maximum and must be corrected to 15 years. The costs imposed under sections 943.25(4) and 960.20 were improper and must be struck, with remand for a hearing if costs are to be reassessed consistent with Jenkins v. State.
[1] A second-degree felony is reclassified as a first-degree felony if committed with a weapon, unless the use of a weapon was an essential element of the crime charged.
[2] A court errs in sentencing a defendant to a term exceeding the statutory maximum for the offense charged.
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“Since the information charged only bodily harm and not great bodily harm the addition of the charge, 'in so doing used a deadly weapon,' was essential to constitute the offense of aggravated battery.”
Establishes that the weapon element was essential to the offense, preventing reclassification to first-degree felony under section 775.087.
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Join FLexlaw to unlock all legal intelligenceGriffin pleaded guilty to multiple counts across several informations in a negotiated plea for a concurrent 17-year sentence. One count charged aggrav…
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CAMPBELL, Judge.
Appellant, Andra Lavon Griffin, appeals the order that sentenced him to serve seventeen years for aggravated battery and imposed costs under sections 943.25(4) and 960.20, Florida Statutes (1985) without notice and a hearing. Appellant’s sentence was imposed after he pleaded guilty to several informations involving multiple counts. His negotiated plea was for seventeen years to run concurrent with sentences on several other informations. The plea negotiations did not specify the sentence for each count of each information.
Appellant argues first that the court erred when it sentenced him to seventeen years for an aggravated battery count because aggravated battery is a second degree felony carrying a maximum term of fifteen years. § 784.045, Fla.Stat. (1985). Under section 775.087, a second degree felony “shall” be reclassified as a first degree felony if committed with a weapon unless the use of a weapon was an essential element of the crime charged. The information in this case charged that appellant “unlawfully, actually and intentionally touchfed] or ... [struck], or intentionally cause[d] bodily harm to ... [victim], and in so doing used a deadly weapon.” Since the information charged only bodily harm and not great bodily harm the addition of the charge, “in so doing used a deadly weapon,” was essential to constitute the offense of aggravated battery. See also Perez v. State, 431 So. 2d 274 (Fla. 5th DCA), affirmed, 449 So. 2d 818 (Fla.1984).
Since appellant was sentenced for a second degree felony, and the maximum sentence for a second degree felony is fifteen years, the court erred in sentencing appellant to seventeen years on that count. Inasmuch as appellant agreed to a seventeen year sentence, on remand, the judgment and sentence should be corrected to reflect the aggravated battery sentence as fifteen years.
We also agree with appellant that the court improperly imposed costs under sections 943.25(4) and 960.20, Florida Statutes (1985). Burrow v. State, 487 So. 2d 77 (Fla. 2d DCA 1986).
Consequently, we strike that part of the judgment assessing costs and remand to correct the sentence on the aggravated battery count to fifteen years and for a hearing in accord with the requirements of Jenkins v. State, 444 So. 2d 947 (Fla.1984), if costs are to be reassessed.
SCHEB, A.C.J., and LEHAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004)…he use of a weapon is not necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadly weapon is not subject to reclassification because the use of a weapon is an essential element of the crime.”); Griffin v. State, 509 So. 2d 980, 981 (Fla. 2d DCA 1987) (“Since the information charged only bodily harm and not great bodily harm the addition of the charge, ‘in so doing used a deadly weapon,’ was essential to constitute the offense of aggravated battery.”). It is apparent that…
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Franklin v. State, 541 So. 2d 1227 (Fla. 2d DCA 1989)…weapon during the commission of the offense. We believe that these facts, taken together, are sufficient to reach the conclusion that appellant was charged with a felony for which the use of a weapon was an essential element. See Griffin v. State, 509 So. 2d 980 (Fla. 2d DCA 1987). See e.g., Daniels v. State, 473 So. 2d 722 (Fla. 4th DCA 1985); Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1985); Whitehead v. State, 446 So. 2d 194, 198 (Fla. 4th DCA 1984). Because it is improper under section 775.-087(1) to…
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Pinkerton v. State, 534 So. 2d 425 (Fla. 5th DCA 1988)…t of the underlying crime of aggravated battery, and reclassification was improper under the section of the statute which exempts from its operation a felony in which the use of a weapon is an essential element. Bell, supra; accord Griffin v. State, 509 So. 2d 980 (Fla. 2d DCA 1987). See also Webb v. State, 410 So. 2d 944 (Fla. 1st DCA), review denied, 421 So. 2d 68 (Fla.1982). But see Pedrera v. State, 401 So. 2d 823 (Fla. 3d DCA 1981). We vacate the sentence and remand the case for resentencing as a second…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983)
- Burrow v. State, 487 So. 2d 77 (Fla. 2d DCA 1986)
- State v. Perez, 449 So. 2d 818 (Fla. 1984)