Palmer v. State, 96-1705

• Decision Date: 25 April 1997
• Docket Number: No. 96-1705,96-1705
• Citation: 692 So.2d 974
• Parties: 22 Fla. L. Weekly D1065 Kevin PALMER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 974

692 So.2d 974

22 Fla. L. Weekly D1065

Kevin PALMER, Appellant, v. STATE of Florida, Appellee.

No. 96-1705.

District Court of Appeal of Florida Fifth District.

April 25, 1997.

James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We grant Kevin Palmer's motion for rehearing, withdraw our per curiam affirmance issued January 21, 1997, reverse Palmer's sentence, and remand for resentencing.

Palmer appeals from the sentence imposed upon resentencing following his prior appeal from a conviction of aggravated battery with a firearm. See Palmer v. State, 667 So.2d 1018 (Fla. 5th DCA 1996) (Palmer I ). He correctly contends that it was error to sentence him to a minimum mandatory eight-year prison term on the basis that he utilized a semi-automatic weapon when the information charged and the jury's verdict merely found that he had used a "firearm." ¹

Analogous cases have made it clear that Palmer's possession of a semi-automatic weapon during the commission of the aggravated battery had to be charged in the indictment before his sentence could be enhanced on this basis. See, e.g., Mesa v. State, 632 So.2d 1094, 1097 (Fla. 3d DCA 1994) (possession of a firearm is "an essential element of the crime charged" which "must be alleged in the indictment or information" before enhancement is permitted pursuant to section 775.087, Florida Statutes); Cox v. State, 530 So.2d 464 (Fla. 5th DCA 1988) (fundamental error to enhance offenses and impose minimum mandatory sentence because of use of firearm in commission of offenses where defendant was not charged with possession of firearm under battery counts in amended information). Additionally, the verdict form contained no special finding that Palmer had used a semi-automatic weapon; instead, he was found guilty of aggravated battery "with a firearm." Again, analogous cases indicate that this is insufficient to permit the enhancement of his sentence for use of a semi-automatic weapon. See, e.g., State v. Tripp, 642 So.2d 728 (Fla.1994) (error to reclassify felony and enhance sentence based on defendant's use of a weapon absent special verdict form reflecting jury's separate finding that defendant used weapon during commission of felony; a finding that defendant is guilty as charged...