JESSIE JAMES HURRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant's aggravated battery conviction was properly reclassified as a first-degree felony because the use of a weapon was not an essential element of the crime, allowing for a longer sentence.
The appellant was convicted of aggravated battery and sentenced to thirty years imprisonment after his offense was reclassified as a first-degree felo…
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PER CURIAM.
The appellant contends that his aggravated battery conviction should not have been reclassified as a first degree felony, and that he therefore should not have been sentenced to a thirty year term of imprisonment. An aggravated battery is ordinarily a second degree felony punishable by a maximum of fifteen years imprisonment. See § 784.045(2), and § 775.082(3)(c), Fla. Stat. However, the appellant’s offense was properly reclassified as a first degree felony pursuant to section 775.087(1), Florida Statutes, and was thus punishable by up to thirty years imprisonment. See § 775.082(3)(b), Fla. Stat. Aggravated battery can be committed in alternative ways, such as by causing great bodily harm or by using a deadly weapon. See § 784.045(1), Fla. Stat. As indicated in section 775.087(1), a degree reclassification pertains when the offense is committed with the use of a weapon, unless the use of the weapon is an essential element of the crime. The appellant relies on Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006), where this court was unable to determine whether an aggravated battery conviction was based on great bodily harm or the use of a deadly weapon, and a § 775.087(1) reclassification was therefore precluded. See also, Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003); Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996).
In Cabral the jury found great bodily harm and the use of a deadly weapon. In the present case the jury made a similar finding, but it is clear that the aggravated battery here is independently established by the great bodily harm, and the use of a deadly weapon is thus not an essential element of the aggravated battery. Instead, use of the weapon is an additional factor which permits reclassification under § 775.087(1).
The appealed order is affirmed.
ALLEN, WEBSTER, and PADOVANO, JJ., concur.
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Lateef Garnes v. State, 382 So. 3d 701 (Fla. 4th DCA 2024)…ATEEF GARNES, actually discharge a firearm? _X_ Yes or __ No 3. During the course of the crime committed, did the Defendant, LATEEF GARNES, actually discharge a firearm, and in doing so cause great bodily harm? _X_ Yes or __ No In Hurry v. State, 978 So. 2d 854, 854 (Fla. 1st DCA 2008), the court found that aggravated battery was “independently established by the great bodily harm, and the use of a deadly weapon [was] thus not an essential element of the aggravated battery.” See also Harrell, 150 So. 3d a…
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Davidson v. State, 149 So. 3d 712 (Fla. 1st DCA 2014)…PER CURIAM. AFFIRMED. See Hurry v. State, 978 So. 2d 854 (Fla. 1st DCA 2008). VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dozier v. State, 677 So. 2d 1352 (Fla. 2d DCA 1996)
- Cabral v. State, 944 So. 2d 1026 (Fla. 1st DCA 2006)
- Perry v. State, 858 So. 2d 1270 (Fla. 1st DCA 2003)