Gause v. State

District Court of Appeal of Florida

Gause v. State

739 So. 2d 1170, 1999 Fla. App. LEXIS 9688, 1999 WL 510615

CourtDistrict Court of Appeal of Florida

DecidedJuly 21, 1999

DocketNo. 98-02938

StatusPublished

Cited by1 cases

This text of 739 So. 2d 1170 (Gause 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

Gause v. State, 739 So. 2d 1170, 1999 Fla. App. LEXIS 9688, 1999 WL 510615 (Fla. Ct. App. 1999).

Pincite

Opinion

PER CURIAM.

Robert Paul Gause appeals the summary denial of his motion for postconviction relief in which he asserted three grounds of error. We agree that the trial court failed to adequately refute Gause’s argument that his sentence was improperly enhanced. Accordingly, we reverse and remand for consideration of this single issue.

Gause was charged with first-degree burglary and attempted second-degree murder with a firearm. The jury convicted him of burglary as charged. However, rather than attempted murder, the jury found him to be guilty of the lesser included offense of aggravated battery with a firearm. At sentencing, the court enhanced the offense of aggravated battery with a firearm from a second-degree felony to a first-degree felony pursuant to section 775.087, Florida Statutes (1993). Gause asserts that it was error for the trial court to employ this enhancement and trial counsel was ineffective for failing to object at sentencing.

The supreme court has held that such an enhancement is improper. See Lareau v. State, 573 So.2d 813 (Fla.1991). Aggravated battery with the use of a deadly weapon is not subject to reclassification pursuant to section 775.087(1), because the use of a weapon is an essential element of the crime. See Wingate v. State, 590 So.2d 1108 (Fla. 2d DCA 1991).

It is, thus, ordered that the denial of the motion for postconviction relief as to this issue is reversed and remanded for reconsideration. On remand, if the court again concludes that summary denial is proper, it must attach to its order those portions of the case file and record which refute Gause’s claim. In all other respects, the denial of the motion for postconviction relief is affirmed.

Affirmed in part, reversed in part, and remanded.

PARKER, A.C.J., and FULMER and SALCINES, JJ., Concur.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Robert Paul Gause appeals the summary denial of his motion for postconviction relief in which he asserted three grounds of error. We agree that the trial court failed to adequately refute Gause’s argument that his sentence was improperly enhanced. Accordingly, we reverse and remand for consideration of this single issue.

Gause was charged with first-degree burglary and attempted second-degree murder with a firearm. The jury convicted him of burglary as charged. However, rather than attempted murder, the jury found him to be guilty of the lesser included offense of aggravated battery with a firearm. At sentencing, the court enhanced the offense of aggravated battery with a firearm from a second-degree felony to a first-degree felony pursuant to section 775.087, Florida Statutes (1993). Gause asserts that it was error for the trial court to employ this enhancement and trial counsel was ineffective for failing to object at sentencing.

The supreme court has held that such an enhancement is improper. See Lareau v. State, 573 So.2d 813 (Fla.1991). Aggravated battery with the use of a deadly weapon is not subject to reclassification pursuant to section 775.087(1), because the use of a weapon is an essential element of the crime. See Wingate v. State, 590 So.2d 1108 (Fla. 2d DCA 1991).

It is, thus, ordered that the denial of the motion for postconviction relief as to this issue is reversed and remanded for reconsideration. On remand, if the court again concludes that summary denial is proper, it must attach to its order those portions of the case file and record which refute Gause’s claim. In all other respects, the denial of the motion for postconviction relief is affirmed.

Affirmed in part, reversed in part, and remanded.

PARKER, A.C.J., and FULMER and SALCINES, JJ., Concur.

Cite This Page — Counsel Stack

Bluebook (online)

739 So. 2d 1170, 1999 Fla. App. LEXIS 9688, 1999 WL 510615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gause-v-state-fladistctapp-1999.

Opinion

Related

Cite This Page — Counsel Stack