Franklin v. State, 4D02-4568.

• Decision Date: 19 May 2004
• Docket Number: No. 4D02-4568.,4D02-4568.
• Citation: 877 So.2d 19
• Parties: Kelvin FRANKLIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

877 So.2d 19

Kelvin FRANKLIN, Appellant, v. STATE of Florida, Appellee.

No. 4D02-4568.

District Court of Appeal of Florida, Fourth District.

May 19, 2004.

Order Certifying Question July 14, 2004.

Rehearing Denied July 14, 2004.

Evelyn A. Ziegler, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, J.

A jury, which could have found appellant guilty of attempted second degree murder with a firearm, found him guilty of the lesser included offense of aggravated battery under an instruction given over his objection. Jury findings that he discharged a firearm and inflicted serious bodily injury increased the penalty for the aggravated battery so that it was no longer less than if he had been convicted of attempted second degree murder with a firearm. We agree with appellant that under these facts the aggravated battery was not a lesser included offense and reverse for a new trial.

This case, which involved several charges, arose out of a shooting into a vehicle which injured a person not in the vehicle. Count III, involving the injured bystander, was submitted to the jury on attempted second degree murder with a firearm, but the jury found appellant guilty of the purportedly lesser included offense of aggravated battery while discharging a firearm and causing serious bodily injury. Under section 775.087, Florida Statutes (2002), our 10-20-life statute, the findings that appellant discharged a firearm and caused serious bodily injury increased the penalty on aggravated battery so that it was not actually less than the penalty for the greater offense, attempted second degree murder with a firearm.

Appellant cites Ray v. State, 403 So.2d 956 (Fla.1981), in which our supreme court held that a lesser included offense, by definition, is an offense which carries a lesser penalty. The principle of Ray has been adopted in Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 124 (Fla.1998) (Regarding Appendix to the Schedule of Lesser Included Offenses comment on Schedule of Lesser Included Offenses); Fla. Std. Jury Instr. (Crim.), Comment on Schedule of Lesser Included Offenses. Because the conviction for aggravated battery involving the discharge of a firearm and serious bodily injury does not carry a lesser penalty than attempted second degree murder, appellant argues that it is not a lesser included under Ray.

The only argument advanced by the state is that we should not consider an enhancement statute such as section 775.087(2) in determining lesser includeds, because an enhancement statute was not considered when lesser includeds were defined in Ray. We do not agree that this distinction makes any difference. One of the reasons for allowing juries to convict on lesser included offenses is to allow a jury to exercise its "pardon" power, State v. Wimberly, 498 So.2d 929, 932 (Fla.1986). Allowing the jury to exercise its "pardon" power gives the jury the opportunity to have the defendant receive a punishment which is less severe than the crime charged. State v. Baker, 456 So.2d 419 (Fla.1984). It follows that we must consider all applicable statutes when determining if a crime is a lesser included offense. Greene v. State, 714 So.2d 554, 557 (Fla. 2d DCA 1998) (maximum sentence is no longer determined only by the degree of the crime); Iseley v. State, 865 So.2d 580 (Fla. 5th DCA 2004) (court considered section 775.087(2) in determining whether aggravated assault with a firearm is a greater offense than aggravated assault with a deadly weapon).

Appellant also argues that there is no competent substantial evidence to support the jury finding of serious bodily injury under section 775.087(2)(a)3, Florida Statutes. The essence of his argument is that not all bullet wounds are necessarily serious, giving the example of a slight grazing; however, the photograph of the victim in this case reflects a round scar in an area which would not be consistent with slight grazing. This was sufficient to support the finding of serious bodily injury.

We have considered the other issues raised and find them to be without merit. We therefore affirm the convictions on counts I and II, but reverse the conviction under count III for a new trial. Appellant states that on retrial he should be charged only with aggravated battery without a firearm, but he has given us no theory or authority...