HERB BENJAMIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed a conviction reclassified from second-degree to first-degree felony because the statute prohibiting firearm-based reclassification contains an exception when the firearm use is an essential element of the crime.
When a firearm is an essential element of the crime charged, section 775.087(1)(b) does not permit reclassification of the felony to a higher degree.
[1] Section 775.087(1)(b) does not permit reclassification of a felony to a higher degree when the use of a firearm is an essential element of the crime charged.
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Join FLexlaw to unlock all legal intelligenceHerb Benjamin was convicted by jury of two counts of aggravated battery with a firearm. The trial court reclassified the convictions from second-degre…
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A jury found appellant, Herb Benjamin, guilty of two counts of aggravated battery with a firearm after being instructed on both aggravated battery based upon great bodily harm and aggravated battery based upon the use of a deadly weapon. See § 784.045(l)(a), Fla. Stat. (2007). At sentencing, the trial court reclassified appellant’s conviction from a second degree felony to a first degree felony pursuant to section 775.087(l)(b), Florida Statutes (2007), and sentenced him to life as a habitual offender with a thirty-year mandatory minimum as a prison releasee reof-fender. We reverse for resentencing.
Aggravated battery is a second-degree felony which is committed by (1) causing great bodily harm or (2) using a deadly weapon. § 784.045. Section 775.087(l)(b) requires the reclassification of certain felonies, including aggravated battery, to the next higher degree if a firearm is used during the commission of the felony, “except a felony in which the use of a weapon or firearm is an essential element.” Because the use of a firearm is an essential element of the crime for which appellant was found guilty, the trial court erred when it reclassified appellant’s convictions to first degree felonies.
We reverse and remand for the trial court to change appellant’s convictions for aggravated battery with a firearm from first degree felonies to second degree felonies and to resentence him accordingly.
Reversed and Remanded.
WARNER, J., and SHAHOOD, GEORGE A., Senior Judge, concur.
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Hernandez v. State, 30 So. 3d 610 (Fla. 3d DCA 2010)…avated battery using a deadly weapon may not be enhanced because use of a firearm is already an essential element of the crime. See, e.g., Lareau v. State, 573 So. 2d 813 (Fla.1991); Metz v. State, 15 So. 3d 32 (Fla. 2d DCA 2009); Benjamin v. State, 8 So. 3d 460 (Fla. 4th DCA 2009); Torris v. State, 611 So. 2d 57 (Fla. 3d DCA 1992). Sometimes it is unclear whether the jury found the defendant guilty of one or the other form of aggravated battery. In such instances, appellate courts have held that the trial…
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Perez-Flores v. State, 214 So. 3d 786 (Fla. 5th DCA 2017)…a deadly weapon is an essential element of the crime. See, e.g., Lareau v. State, 573 So. 2d 813, 815 (Fla. 1991); Brady v. State, 65 So. 3d 599, 601 (Fla. 5th DCA 2011); Hernandez v. State, 30 So. 3d 610, 612 (Fla. 3d DCA 2010); Benjamin v. State, 8 So. 3d 460, 460 (Fla. 4th DCA 2009); Webb v. State, 997 So. 2d 469 (Fla. 2d DCA 2008). Here, the jury was instructed on both forms of aggravated battery and it is unclear whether the jury found Perez-Flores guilty of one or the other form of aggravated battery…