Benjamin v. State

District Court of Appeal of Florida

Benjamin v. State

8 So. 3d 460, 2009 Fla. App. LEXIS 3169, 2009 WL 996318

CourtDistrict Court of Appeal of Florida

DecidedApril 15, 2009

Docket4D07-4491

StatusPublished

Cited by2 cases

This text of 8 So. 3d 460 (Benjamin v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Benjamin v. State, 8 So. 3d 460, 2009 Fla. App. LEXIS 3169, 2009 WL 996318 (Fla. Ct. App. 2009).

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Opinion

HAZOURI, J.

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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HAZOURI, J.

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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8 So. 3d 460, 2009 Fla. App. LEXIS 3169, 2009 WL 996318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-state-fladistctapp-2009.

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