Jose A. Perez-Flores v. State

214 So. 3d 786, 2017 Fla. App. LEXIS 4415

• Court: District Court of Appeal of Florida
• Decided: March 31, 2017
• Docket: Case 5D15-3965
• Status: Published

Opinion

PER CURIAM.

Jose Alejandro Perez-Flores appeals his convictions and sentences following a jury trial for attempted manslaughter by act with a weapon and aggravated battery with a deadly weapon or causing great bodily harm. We affirm his convictions, but reverse his sentence on the aggravated battery and remand for further proceedings.

Perez-Flores argues, and the State properly concedes, the trial court improperly reclassified Perez-Flores’s conviction for aggravated battery with a deadly weapon or causing great bodily harm from a second-degree felony to a first-degree felony, and thereafter, imposed a twenty-year sentence. Reclassification of aggravated battery is not permitted when, as here, it is not clear whether the defendant was found guilty based on a finding that he caused great bodily harm or that he used a deadly weapon. While aggravated battery inflicting great bodily harm is subject to enhancement if a weapon is used, aggravated battery using a deadly weapon is not because use of 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. Thus, reclassification was improper. Accordingly, we reverse and remand for re-sentencing with the aggravated battery classified as a second-degree felony.

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

PALMER and ORFINGER, JJ., and BOATWRIGHT, J., Associate Judge, concur.