Powers v. State

District Court of Appeal of Florida

Powers v. State

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

CourtDistrict Court of Appeal of Florida

DecidedApril 14, 1999

DocketNo. 97-03847

StatusPublished

This text of 731 So. 2d 777 (Powers 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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Powers v. State, 731 So. 2d 777, 1999 Fla. App. LEXIS 4651, 1999 WL 211902 (Fla. Ct. App. 1999).

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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.

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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.

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731 So. 2d 777, 1999 Fla. App. LEXIS 4651, 1999 WL 211902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powers-v-state-fladistctapp-1999.

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