TIMOTHY DONALD HELTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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ON REMAND FROM THE FLORIDA SUPREME COURT
We originally reversed Helton’s conviction for aggravated battery and remanded for a new trial based on this court’s decision in Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014). However, the Florida Supreme Court quashed our original opinion in this case and remanded for reconsideration upon application of its decision in State v. Floyd, 186 So.3d 1013 (Fla. 2016). Based on that decision, we reject Helton’s argument that the jury instructions regarding the duty to retreat were fundamentally erroneous.
However, we agree that Helton’s conviction for aggravated battery was improperly reclassified from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2010), based on the use of a weapon, which was an *229essential element of the offense. In finding Helton guilty of aggravated battery, the jury determined that in the course of committing the aggravated battery, Helton both “caused great bodily harm, permanent disability or permanent disfigurement to [the victim]” and “used a deadly weapon.” Helton’s conviction for aggravated battery under both statutory theories cannot be reclassified pursuant to section 775.087(1) because it cannot be determined that the conviction was not based on the use of a deadly weapon. Frasier v. State, 132 So.3d 365 (Fla. 1st DCA 2014). Accordingly, we reverse and remand for resen-tencing of the offense as a second-degree felony.
AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.
ROBERTS, JAY, and M.K. THOMAS, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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N'Kosi Lerone Jones v. State (Fla. 1st DCA 2019)…ict finding the defendant guilty of aggravated battery causing permanent disability, permanent disfigurement, or great bodily harm and with a deadly weapon, the sentence could not be reclassified pursuant to section 775.087(1)); and Helton v. State, 227 So. 3d 228 (Fla. 1st DCA 2017) (same). Here, Jones’ conviction was reclassified as a first degree felony. He argues that reclassification is erroneous because it is not clear from the verdict that use of a firearm was found to be an element of the conviction…
Authorities Cited
- Floyd v. State, 151 So. 3d 452 (Fla. 1st DCA 2014)
- State v. Floyd, 186 So. 3d 1013 (Fla. 2016)
- Frasier v. State, 132 So. 3d 365 (Fla. 1st DCA 2014)