Ingraham v. State, 87-1604
| Decision Date | 05 May 1988 |
| Docket Number | No. 87-1604,87-1604 |
| Citation | 527 So.2d 222,13 Fla. L. Weekly 1072 |
| Parties | 13 Fla. L. Weekly 1072, 13 Fla. L. Weekly 1542 John E. INGRAHAM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee.
This is an appeal from a sentence in a sexual battery and kidnapping case.
We agree with appellant that he was improperly convicted of sexual battery in Count V because there was no proof of penetration.
We agree also with appellant that the court improperly departed from the recommended guideline sentence because he failed to provide clear and convincing written reasons for departure. Rease v. State, 493 So.2d 454 (Fla.1986); Kibler v. State, 501 So.2d 76 (Fla. 5th DCA 1987).
We disagree with appellant that the judge erred in enhancing the penalties. Appellant was charged in five counts of sexual battery with force likely to cause serious personal injury. He was found guilty of two counts of sexual battery with threat of great force, two counts of sexual battery with threat of slight force and in the remaining count he was found not guilty. In each of the verdicts the jury found that the offense was committed "with a firearm." This latter finding permits enhancement of the sentence under section 775.087, Florida Statutes (1977).
The state charged the appellant with sexual battery with the use of "force likely to cause serious personal injury" under section 794.011(3) and included in the charge that he "did in the process thereof use threaten to use, or carried a firearm." The first quoted portion of the charge accuses him of the crime while the second quoted portion makes operative the "reclassification" statute. § 775.087. Appellant would have us hold that because the statute under which he was charged provides an alternative means by which to commit a crime, "uses or threatens to use a deadly weapon," that section 775.087 is unavailable to the sentencing judge. He argues that section 775.087 specifically excludes felonies in which the use of a weapon or firearm is an essential element. While he is correct that the statute excludes those felonies, he is incorrect that the exclusion applies here.
The appellant in this case...
To continue reading
Request your trial
-
Gonzalez v. State, 88-2542
...that a firearm is used in the commission of a crime does not necessarily make it an essential element of that crime. Cf. Ingraham v. State, 527 So.2d 222 (Fla. 5th DCA), rev. denied, 534 So.2d 400 (1988); Strickland v. State, 415 So.2d 808 (Fla. 1st DCA 1982), aff'd., 437 So.2d 150 (1983); ......
-
Lareau v. State
...be subject to enhancement where the offense is committed with a firearm and the weapon is not included in the charge. Ingraham v. State, 527 So.2d 222 (Fla. 5th DCA), rev. denied, 534 So.2d 400 (Fla.1988). In Ingraham, enhancement was upheld despite the fact that the defendant could have be......
-
Ingraham v. State
...400 534 So.2d 400 Ingraham (John E.) v. State NO. 72,677 Supreme Court of Florida. SEP 20, 1988 Appeal From: 5th DCA 527 So.2d 222 Rev. ...