Opinion
No. 1D19-256
06-29-2020
Dominic Dimitre DYETT, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, and David Alan Henson, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, and David Alan Henson, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Dominic Dimitre Dyett was convicted of one count of aggravated battery with a deadly weapon and use of a firearm and one count of home invasion robbery with a firearm. During the course of the home invasion, Dyett pistol-whipped the victim with the firearm. Dyett claims that the charge of aggravated battery, a second-degree felony, was improperly reclassified as a first-degree felony; the State agrees and concedes error. Where the use of a weapon or firearm is an essential element of the offense, as in this case, "it [is] improper for the trial court to reclassify the second-degree felony to a first-degree felony." Montgomery v. State , 704 So. 2d 548, 551 (Fla. 1st DCA 1997) ; see also Perry v. State , 858 So. 2d 1270, 1271 (Fla. 1st DCA 2005) ("reclassification is not proper where the use of a weapon is an essential element of the offense"); Cargle v. State , 829 So. 2d 366, 367 (Fla. 1st DCA 2002) ("When a defendant is convicted of aggravated battery based on the use of a deadly weapon, this crime cannot be enhanced based on this same use of a weapon."). As such, we reverse and remand with instructions to resentence on the aggravated battery as a second-degree felony with a firearm and adjust the scoresheet accordingly.
REVERSED and REMANDED .
Wolf, Makar, and Nordby, JJ., concur.