ELLIS R. MASON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ellis Mason appeals his convictions for aggravated battery, carjacking, kidnapping, armed robbery, and aggravated assault. The appellate court affirms all convictions but vacates and remands for resentencing on the habitual offender enhancement to the kidnapping charge, which cannot be imposed on life felonies.
The aggravated battery, carjacking, armed robbery, and aggravated assault convictions are all supported by evidence and are affirmed. Carjacking and armed robbery are separate crimes that do not merge when they occur at different times, even in a course of conduct. An habitual offender enhancement cannot be imposed on kidnapping because it is a life felony.
[1] Aggravated battery is committed when a person commits battery using a deadly weapon.
[2] Carjacking and armed robbery are separate crimes when the taking of money and the taking of the car occur independently and at different times.
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“Because appellant used a deadly-weapon in committing the battery, it is aggravated battery.”
Establishes that the use of a deadly weapon during battery elevates the charge to aggravated battery
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Join FLexlaw to unlock all legal intelligenceMason put a gun to the neck of a victim, touching her, and threatened to kill her. He took money from the victim (armed robbery) and then separately t…
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DAUKSCH, Judge.
This is an appeal from convictions for aggravated battery, carjacking, kidnapping, armed robbery and aggravated assault.
Among the issues on appeal is the question of whether the aggravated battery charge was proved. The evidence is that appellant put a gun to the neck of the victim, touching her. Battery is defined as 784.03 Battery.—
(1)A person commits battery if he:
(a) Actually and intentionally touches or strikes another person against the will of the other;
Aggravated battery is
784.045 Aggravated battery.—
(l)(a) A person commits aggravated battery who, in committing battery:
* * * * *
2. Uses a deadly weapon.
Because appellant used a deadly-weapon in committing the battery, it is aggravated battery.
Another issue involves the carjacking1 conviction vis-a-vis the robbery conviction. Appellant asserts that the armed robbery2—the taking of money—and the carjacking should be combined into one robbery because carjacking is a form of robbery and both robberies merged together under the facts of this ease. We disagree. There were two separate crimes committed. First the taking of the money and then the carjacking—the taking of the car. They are separate crimes and the commission of them occurred separately. If appellant had carjacked and there was money in the car then he could have been charged only with one robbery, or the carjacking. But here the two occurred independent of each other and at different times, although in a course of conduct which included the kidnapping and the other crimes.
The third issue regards the imposition of an habitual offender sentence on the kidnapping charge. Because kidnapping is a life felony, it cannot be enhanced to habitual offender status. §§ 775.084(4)(b) and 775.087(1)(a), Fla.Stat. (1993); Houck v. State, 637 So. 2d 298 (Fla. 1st DCA 1994); Larry v. State, 616 So. 2d 603 (Fla. 2d DCA 1993); Hayes v. State, 598 So. 2d 135, 136 (Fla. 5th DCA 1992). That sentence is vacated and remanded for resentencing.
The final issue involves the viability of the aggravated assault conviction. During the course of the crimes the victim begged appellant not to kill her; while holding the gun he said he was going to kill her. The statute says
784.011 Assault.—
(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
It is evident from the record that the victim was in fear based upon the well-founded belief appellant was about to kill her. That is aggravated assault because he used a gun, a deadly weapon. § 784.021, Fla.Stat. (1993).
CONVICTION AFFIRMED; SENTENCE VACATED in part; REMANDED.
COBB and ANTOON, JJ., concur. . § 812.133, Fla.Stat. (1993).
. §§ 812.13(1) & (2)(a), Fla.Stat. (1993).
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Cruller v. State, 808 So. 2d 201 (Fla. 2002)…same offense as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense. . It is important to note that in Brown v. State, 743 So. 2d 1213 (Fla. 4th DCA 1999), Mason v. State, 665 So. 2d 328 (Fla. 5th DCA 1995), Smart v. State, 652 So. 2d 448 (Fla. 3d DCA 1995), and Waters v. State, 542 So. 2d 1371 (Fla. 3d DCA 1989), there are insufficient facts recited in the district court opinions to determine whether there was a temporal and geogra…
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Consiglio v. State, 743 So. 2d 1221 (Fla. 4th DCA 1999)…e acts: (1) an intent and act to steal money from the victim; and (2) an intent and act to steal the victim’s car. See, e.g., Simboli v. State, 728 So. 2d 792, 793 (Fla. [*1222] 5th DCA 1999), rev. denied, 741 So. 2d 1137 (Fla.1999); Mason v. State, 665 So. 2d 328, 329 (Fla. 5th DCA 1995). Conviction for both crimes under these circumstances does not violate principles of double jeopardy. DELL and STONE, JJ., concur.…
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Howard v. State, 723 So. 2d 863 (Fla. 1st DCA 1998)…ctions for armed robbery and armed carjacking upon evidence showing that Smart robbed his victim of jewelry and his wallet next to an ATM machine, and then drove away in the victim’s car. The Fifth District reached the same result in Mason v. State, 665 So. 2d 328 (Fla. 5th DCA 1995), where the evidence disclosed that the defendant robbed the victim of money and then took his car. See also McKin [*865] ney v. State, 579 So. 2d 80 (Fla.1991) (rejecting a double-jeopardy argument based upon .evidence that the d…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hayes v. State, 598 So. 2d 135 (Fla. 5th DCA 1992)
- Houck v. State, 637 So. 2d 298 (Fla. 1st DCA 1994)
- Larry v. State, 616 So. 2d 603 (Fla. 2d DCA 1993)