RICO L. CARGLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cargle appeals the summary denial of his postconviction rule 3.850 motion challenging the reclassification of his aggravated battery conviction from second-degree to first-degree felony based on weapon use. The court reverses because the charging information alone does not conclusively refute his claim that the jury actually convicted him based on use of a weapon rather than great bodily harm, and the jury instructions and verdict form—which specified weapon use—were not attached to the record.
The court reversed and remanded because Cargle's claim is facially sufficient and not conclusively refuted by the record. Although the information charged aggravated battery based on great bodily harm, the charging information alone is not dispositive of the basis for conviction when jury instructions and the verdict form allowed conviction based on use of a weapon.
[1] Aggravated battery may be committed by causing great bodily harm or by using a deadly weapon.
[2] A conviction for aggravated battery based on the use of a deadly weapon cannot be enhanced to a first-degree felony based on the same use of a weapon.
Previewing 2 of 5 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“When a defendant is convicted of aggravated battery based upon causing great bodily harm (rather than through use of a deadly weapon), this crime can be enhanced to a first-degree felony based on the use of a weapon... When a defendant is convicted of aggravated battery based on the use of a deadly weapon, this crime cannot be enhanced based on this same use of a weapon.”
Establishes the critical distinction in Florida law regarding when weapon-based enhancement is permissible depending on the basis of the aggravated battery conviction.
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Join FLexlaw to unlock all legal intelligenceCargle was convicted of aggravated battery. The charging information alleged aggravated battery based on causing great bodily harm. However, the jury …
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PER CURIAM.
Appellant appeals the summary denial of his rule 3.850 motion for postconviction relief upon remand by this Court. See Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001). In his motion, Appellant alleged that the trial court erred in reclassifying his aggravated battery conviction from a second-degree felony to a first-degree felony based on his use of a weapon where use of the weapon was an essential element of his conviction. Specifically, Appellant alleged that the verdict form required the jury to convict him of aggravated battery through use of a weapon.
The trial court summarily denied this motion. Upon appeal, this Court reversed the summary denial of this claim, determining that Appellant brought a facially sufficient claim. Cargle, 800 So. 2d at 698. On remand, the circuit court again summarily denied Appellant’s motion, concluding that it was refuted by the language of the information which charged Appellant with aggravated battery by causing great bodily harm. Because the information does not refute Appellant’s claim that he was convicted of aggravated battery through use of a deadly weapon, where the jury instruction and the verdict form specified that Appellant used a gun, we reverse and remand.
Aggravated battery may be committed either by causing great bodily harm or by using a deadly weapon. § 784.045(l)(a), Fla. Stat. (1995). When a defendant is convicted of aggravated battery based upon causing great bodily harm (rather than through use of a deadly weapon), this crime can be enhanced to a first-degree felony based on the use of a weapon. Lareau v. State, 573 So. 2d 813, 814-15 (Fla.1991). When a defendant is convicted of aggravated battery based on the use of a deadly weapon, this crime cannot be enhanced based on this same use of a weapon. Id If it is unclear whether the jury found a defendant guilty of aggravated battery based upon great bodily harm or use of a weapon, enhancement is not permitted. Montgomery v. State, 704 So .2d 548, 550-51 (Fla. 1st DCA 1997).
This Court has previously determined that a charging information that alleges aggravated battery based solely on “great bodily harm” is not dispositive of whether the' defendant was actually convicted of aggravated battery based upon great bodily harm, as opposed to having been convicted of aggravated battery based on use of a weapon. Even if the information does not charge aggravated battery for use of a weapon, instructions to the jury and the jury form itself can render enhancement improper if those instructions or the form allow the jury to convict the defendant of aggravated battery based on use of a weapon. McNeal v. State, 653 So. 2d 1122, 1122-24 (Fla. 1st DCA 1995). In the present case, neither the jury instruction nor the verdict form are attached.
Thus, notwithstanding that the information charged an aggravated battery based upon causing great bodily harm, the appellant’s claim that the jury actually convicted him of aggravated battery by using a weapon is not conclusively refuted.
Because Appellant’s claim is facially sufficient and is not conclusively refuted by the record, we reverse for an evidentiary hearing or record attachments conclusively refuting Appellant’s claim.
REVERSED and REMANDED.
ERVIN, BOOTH and BROWNING, JJ., concur.
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Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003)…775.087(1), Florida Statutes, based on the appellant’s use of a deadly weapon. However, reclassification is not proper where the use of a weapon is an essential element of the offense. See Lareau v. State, 573 So. 2d 813 (Fla.1991); Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002); § 775.087(1), Fla. Stat. (1991). Furthermore, where it is unclear whether the defendant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement is not permitted. See Montgomer…
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Hamilton v. State, 996 So. 2d 964 (Fla. 1st DCA 2008)…everse and remand for an evidentiary hearing on the claims raised in ground five of appellant’s post-conviction motion or for record attachments conclusively refuting them, see Ward v. State, 984 So. 2d 650, 655 (Fla. 1st DCA 2008); Cargle v. State, 829 So. 2d 366, 367 (Fla. 1st DCA 2002), but affirm the order on appeal otherwise. BROWNING, C.J. and KAHN, J., concur. . The court below had earlier vacated consecutive habitual offender sentences of ten years on count I and life on count IV, then pronounced th…
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Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004)…was based on use of a deadly weapon or firearm, this crime cannot be additionally enhanced using section 775.087(2)(a); because the weapon is an essential element of the crime. See Young v. State, 841 So. 2d 697 (Fla. 4th DCA 2003); Cargle v. State, 829 So. 2d 366 (Fla. 1st DCA 2002). Sentence VACATED; REMANDED for Resentencing. GRIFFIN and TORPY, JJ., concur. . § 784.045(l)(a)2., Fla. Stat.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Montgomery v. State, 704 So. 2d 548 (Fla. 1st DCA 1997)
- McNEAL v. State, 653 So. 2d 1122 (Fla. 1st DCA 1995)
- Walker v. State, 800 So. 2d 698 (Fla. 5th DCA 2001)
- Rico L. Cargle v. State, 800 So. 2d 698 (Fla. 1st DCA 2001)