Summary
In Oliveira, the fourth district had relied on Merritt v. State, 712 So.2d 384 (Fla. 1998), in which the Florida Supreme Court held that section 784.07 only defined completed crimes and not attempts, making the defendant's conviction in that case for attempted battery on a law enforcement officer error.
Summary of this case from Mills v. StateOpinion
Nos. 97-4244 and 99-0417.
Opinion filed November 24, 1999.
Consolidated appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William P. Dimitrouleas and James I. Cohn, Judges; L.T. No. 96-6058 CF10A.
Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Gentry Denise Benjamin, Assistant Attorney General, West Palm Beach, for appellee.
The Defendant appeals his convictions and sentences for possession of cocaine with intent to sell and battery on a law enforcement officer. We affirm the convictions and sentences in all respects, with the exception that we reverse the sentence for battery on a law enforcement officer and remand for re-sentencing.
The Defendant asserts that the offense enhancement from battery, a first degree misdemeanor, to battery on a law enforcement officer, a third degree felony, in conjunction with a ten-year sentence under the habitual felony offender statute has resulted in improper double enhancement. We agree.
The Florida Supreme Court has recently explained, "[s]ection 784.07 . . . is an enhancement statute rather than a statute creating and defining any criminal offense." Merritt v. State, 712 So.2d 384, 385 (Fla. 1998). In the present case, the Defendant's offense was reclassified pursuant to section 784.07(2)(b). In addition, his sentence was enhanced under the habitual felony offender statute. Because section 784.07 is itself an enhancement statute, the Defendant has been subjected to double punishment by also having his sentence enhanced under the habitual offender statute. See, e.g., Gayman v. State, 616 So.2d 17, 18 (Fla. 1993) (stating that defendants cannot receive multiple punishments for the same offense). Accordingly, we affirm all the Defendant's convictions and sentences in all respects, with the exception that we reverse the sentence for battery on a law enforcement officer and remand for re-sentencing.
AFFIRMED in part, REVERSED in part, and REMANDED.
GUNTHER, FARMER and KLEIN, JJ., concur.