Davis v. State, 2D03-2454.
Decision Date | 15 October 2004 |
Docket Number | No. 2D03-2454.,2D03-2454. |
Parties | Oscar DAVIS, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
Oscar Davis challenges his conviction and sentence for aggravated battery, contending that the charging document was fatally defective and that his sentence was illegally enhanced. We hold that he was properly convicted of aggravated battery but reverse and remand for resentencing. Mr. Davis was charged by amended information with aggravated battery with a firearm, and the jury found him guilty "as charged of Aggravated Battery (discharging a firearm causing great bodily harm)." On appeal, he contends that he was unlawfully convicted of an offense for which he was not charged and that his conviction should be reduced to the offense of simple battery.
Mr. Davis argues that this language could not effectively charge him with either form of aggravated battery as set out in section 784.045(1)(a)(1) or (2), Florida Statutes (2002), which provides as follows:
Mr. Davis's position is that the information does not precisely track the statute and that the language charging him with actually possessing and discharging a deadly weapon in committing a battery is insufficient to bring him within the statutory requirement of using a deadly weapon in committing a battery. The cases on which he relies do not address whether an information correctly charges aggravated battery but concern the availability of sentencing enhancements involving certain minimum mandatory terms for use of a firearm. See, e.g., Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002)
. In the context of whether this information properly charges an aggravated battery, however, the following explanation from Lareau v. State, 573 So.2d 813, 815 (Fla.1991), is instructive:
but a person who discharges a firearm must necessarily be said to have used it.
Mr. Davis also contends, correctly, that his aggravated battery conviction could not be enhanced pursuant to section 775.087(1), which provides for reclassification of a crime from a second-degree to a first-degree felony if the defendant uses a firearm during its commission, unless "the use of a weapon or firearm is an essential element" of the crime. In Mr. Davis's case, the information charged him with intentionally causing bodily harm to the victim by discharging a firearm. Because the information did not allege that Mr. Davis caused great bodily harm to the victim, the use of the firearm was an essential element of the aggravated battery charge. See Gonzalez v. State, 585 So.2d 932, 933 (Fla.1991)
(); Griffin v. State, 509 So.2d 980, 981 (Fla. 2d DCA 1987) ().
It is apparent that the prosecution charged Mr. Davis with "actually possessing and discharging a firearm" rather than simply with "using a deadly weapon" because, in addition to reclassification, section 775.087 provides for sentencing enhancements when a firearm is possessed or used during the commission of certain enumerated crimes. However, the minimum terms mandated by the "10-20-Life" statute, section 775.087(2), cannot be legally imposed unless the statutory elements are precisely charged in the information. Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004); Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004). In Altieri, 835 So.2d at 1183, the Fourth District explained the rationale as follows:
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