Bell v. State, 79-1677
| Decision Date | 04 March 1981 |
| Docket Number | No. 79-1677,79-1677 |
| Citation | 394 So.2d 570 |
| Parties | Gary Jerome BELL, Appellant, v. STATE of Florida, Appellee. /T4-686. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Larry S. Weaver, Attorney at Law, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant, after being arrested following a controlled drug buy, used a concealed derringer pistol to shoot two undercover agents. Agent Sears was shot in the head and Agent Wimberly in the throat. Both agents survived but the left side of Agent Sears' face was paralyzed; he is unable to close his left eye and is deaf in the left ear. Charges filed against appellant included attempted first-degree murder of Agent Wimberly (the information alleging that in the furtherance of such attempt appellant did shoot Agent Wimberly with a firearm) and an aggravated battery on Agent Sears by the use of a deadly weapon.
In charging the jury as to aggravated battery, both as a lesser included offense of the attempted murder of Agent Wimberly and as the alleged aggravated battery on Agent Sears, the court explained a battery and then followed section 784.045, Florida Statutes (1979), to define an aggravated battery as a battery in commission of which a person (a) intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement or (b) uses a deadly weapon. The trial court further informed the jury that in this case it was alleged that a firearm or handgun was used and, consistent with that allegation, the verdict forms related only to aggravated battery with a firearm. The trial court also gave Florida Standard Jury Instruction (Criminal) 1 2.17 (based on section 775.087, Florida Statutes), in effect advising the jury that punishment for the crimes charged was greater if they found in their verdict that during the commission of the crimes alleged the accused used a weapon or firearm.
As to both of these charges appellant was convicted of aggravated battery with a firearm, a violation of section 784.045(1)(b), Florida Statutes (1979), classified in section 784.045(2), Florida Statutes (1979), as a felony of the second degree and, therefore, under section 775.082(3)(c), Florida Statutes (1979), punishable by imprisonment not exceeding 15 years.
The trial court applied section 775.087(1)(b), Florida Statutes (1979), and reclassified both offenses to be a felony of the first degree and imposed two consecutive 30 year sentences under section 775.082(3)(b), Florida Statutes (1979).
A problem arises in this case from the fact that there are two separate and distinct types of aggravated battery, i. e., a battery under section 784.045(1) (a) which intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement, and a battery under section 784.045(1) (b) which is committed by one who uses a deadly weapon. Obviously in a given case, as here, the facts could be that great bodily harm, permanent disability or permanent disfigurement resulted from the use of a deadly weapon. However, distinctions between these two species of aggravated battery must be carefully made and preserved because of the necessity of procedural and substantive consistency between allegations, proof, verdict, judgment and punishment in criminal cases. Neither battery nor either type of aggravated battery is a necessarily lesser included offense of attempted murder but either type of aggravated battery could have been alleged as a permissible lesser included offense of the attempted murder charge. See Brown v. State, 206 So.2d 377 (Fla.1968). We hold the allegation "did shoot the said Alan Wimberly with a firearm" to be sufficient to allege a battery committed by use of a deadly weapon (section 784.045(1)(b)), as a lesser included offense of the attempted murder charge. However, section 775.087(1), Florida Statutes (1979), providing for the reclassification of felonies and the consequent enhancement of possible punishment when during the commission of a felony the defendant carries, displays, uses, threatens or attempts to use...
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