POWERS v. STATE (1999)

District Court of Appeal of Florida,Second District.

Jerod Brandon POWERS, Appellant, v. STATE of Florida, Appellee.

No. 97-03847.

Decided: April 14, 1999

James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

Jerod Brandon Powers appeals his judgment and sentence for aggravated battery with a firearm. His only point on appeal concerns the trial court's decision to reclassify the offense from a second-degree felony to a first-degree felony based on use of a firearm. Such reclassification is precluded under the statute if the crime charged requires use of a firearm. See Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996). In this case, the jury expressly found Mr. Powers guilty of “aggravated battery with a firearm” as a lesser-included offense. There appears no possibility that the jury returned its verdict based on aggravated battery with great bodily harm. Accordingly, we reverse the sentence in this case and remand for resentencing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, Acting Chief Judge.

WHATLEY and CASANUEVA, JJ., Concur.

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