Frasier v. State

District Court of Appeal of Florida

Frasier v. State

132 So. 3d 365, 2014 WL 493997, 2014 Fla. App. LEXIS 1747

CourtDistrict Court of Appeal of Florida

DecidedFebruary 7, 2014

DocketNo. 1D13-742

StatusPublished

Cited by2 cases

This text of 132 So. 3d 365 (Frasier 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.

Bluebook

Frasier v. State, 132 So. 3d 365, 2014 WL 493997, 2014 Fla. App. LEXIS 1747 (Fla. Ct. App. 2014).

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Opinion

PER CURIAM.

We affirm the denial of appellant’s motion for postconviction relief with the sole exception of appellant’s claim that his con[366]*366viction for aggravated battery under section 784.045(l)(a), Florida Statutes (2009), could not be reclassified from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2009), based on the use of a weapon, which was an essential element of the offense. The jury in this case returned a verdict finding appellant “[gjuilty of Aggravated Battery Causing Permanent Disability, Permanent Disfigurement, or Great Bodily Harm and with a Deadly Weapon, as charged in the Information.” Appellant’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. Descault v. State, 90 So.3d 997 (Fla. 1st DCA 2012); Hernandez v. State, 30 So.3d 610 (Fla. 3d DCA 2010); Webb v. State, 997 So.2d 469 (Fla. 2d DCA 2008); Cabral v. State, 944 So.2d 1026 (Fla. 1st DCA 2006); Perry v. State, 858 So.2d 1270 (Fla. 1st DCA 2003); Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996); McNeal v. State, 653 So.2d 1122 (Fla. 1st DCA 1995); Brown v. State, 583 So.2d 742 (Fla. 1st DCA 1991). Accordingly, we reserve and remand for resen-tencing of the offense as a second-degree felony.

AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.

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PER CURIAM.

We affirm the denial of appellant’s motion for postconviction relief with the sole exception of appellant’s claim that his con[366]*366viction for aggravated battery under section 784.045(l)(a), Florida Statutes (2009), could not be reclassified from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2009), based on the use of a weapon, which was an essential element of the offense. The jury in this case returned a verdict finding appellant “[gjuilty of Aggravated Battery Causing Permanent Disability, Permanent Disfigurement, or Great Bodily Harm and with a Deadly Weapon, as charged in the Information.” Appellant’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. Descault v. State, 90 So.3d 997 (Fla. 1st DCA 2012); Hernandez v. State, 30 So.3d 610 (Fla. 3d DCA 2010); Webb v. State, 997 So.2d 469 (Fla. 2d DCA 2008); Cabral v. State, 944 So.2d 1026 (Fla. 1st DCA 2006); Perry v. State, 858 So.2d 1270 (Fla. 1st DCA 2003); Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996); McNeal v. State, 653 So.2d 1122 (Fla. 1st DCA 1995); Brown v. State, 583 So.2d 742 (Fla. 1st DCA 1991). Accordingly, we reserve and remand for resen-tencing of the offense as a second-degree felony.

AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.

BENTON, SWANSON, and OSTERHAUS, JJ., concur.

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Bluebook (online)

132 So. 3d 365, 2014 WL 493997, 2014 Fla. App. LEXIS 1747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frasier-v-state-fladistctapp-2014.

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