Powers v. State

731 So. 2d 777, 1999 Fla. App. LEXIS 4651, 1999 WL 211902

Opinion

ALTENBERND, Acting Chief Judge.

Jerod Brandon Powers appeals his judgment and sentence for aggravated battery with a firearm. His only point on appeal concerns the trial court’s decision to reclassify the offense from a second-degree felony to a first-degree felony based on use of a firearm. Such reclassification is precluded under the statute if the crime charged requires usé of a firearm. See Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996). In this case, the jury expressly found Mr. Powers guilty of “aggravated battery with a firearm” as a lesser-included offense. There appears no possibility that the jury returned its verdict based on aggravated battery with great bodily harm. Accordingly, we reverse the sentence in this case and remand for resen-tencing.

Affirmed in part, reversed in part, and remanded.

WHATLEY and CASANUEVA, JJ., Concur.