ERROL CRAWFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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FULMER, Judge.
Errol Crawford challenges his thirty-year sentence for aggravated battery. Because the trial court erred in utilizing the weapon enhancement in section 775.087(1), Florida Statutes (1997), we reverse and remand for the trial court to resentence Crawford for a second-degree felony.
Section 775.087(1) precludes reclassification if the crime charged requires the use of a weapon as one of its essential elements. The jury was instructed that it could find Crawford guilty of aggravated battery either by finding great bodily harm or use of a deadly weapon. The jury verdict form did not make a distinction between the two types of aggravated battery. Based on the instructions given and the verdict rendered we cannot rule out the possibility that the jury found Crawford guilty of aggravated battery by use of a deadly weapon, in which case the weapon was an essential element of the offense, and enhancement was improper. See Lareau v. State, 573 So. 2d 813 (Fla.1991); Bogdanon v. State, 763 So. 2d 376 (Fla. 2d DCA 2000). Accordingly, we reverse and remand for resentencing.
Reversed and remanded.
CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, Concur.
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Webb v. State, 997 So. 2d 469 (Fla. 2d DCA 2008)…a weapon in the course of committing that offense. Therefore, we find that the use of a weapon became an essential element of the offense and cannot be used to reclassify the degree of felony. Id. at 1353 (citation omitted); see Crawford v. State, 858 So. 2d 1131 (Fla. 2d DCA 2003) (accord); Cabral v. State, 944 So. 2d 1026, 1027 (Fla. 1st DCA 2006) (“[Bjecause it is unclear whether appellant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement of his s…
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Gonzalo Rodriguez v. State, 885 So. 2d 1041 (Fla. 2d DCA 2004)…underlying offense, the trial court could not properly reclassify the offense to a first-degree felony under section 775.087, Florida Statutes (1999), which allows reclassification of a crime when a weapon or firearm is used. See Crawford v. State, 858 So. 2d 1131, 1132 (Fla. 2d DCA 2003); Brown v. State, 806 So. 2d 576, 577 (Fla. 2d DCA 2002). The State properly concedes that Rodriguez’s sentence on the aggravated battery [*1042] charge is illegal. Accordingly, we reverse that sentence and. remand for furth…
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Metz v. State, 15 So. 3d 32 (Fla. 2d DCA 2009)…two types of aggravated battery, we cannot rule out the possibility that the jury was basing its verdict on the deadly-weapon type of aggravated battery for which reclassification is improper. See Webb, 997 So. 2d at 471; see also Crawford v. State, 858 So. 2d 1131, 1132 (Fla. 2d DCA 2003). Accordingly, we reverse and remand for resentencing. Reversed and remanded. WHATLEY and KHOUZAM, JJ„ Concur. . Metz was originally charged with attempted second-degree murder.…
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- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Bogdanon v. State, 763 So. 2d 376 (Fla. 2d DCA 2000)