DYETT v. STATE (2020)

Dominic Dimitre Dyett was convicted of one count of aggravated battery with a deadly weapon and use of a firearm and one count of home invasion robbery with a firearm. During the course of the home invasion, Dyett pistol-whipped the victim with the firearm. Dyett claims that the charge of aggravated battery, a second-degree felony, was improperly reclassified as a first-degree felony; the State agrees and concedes error. Where the use of a weapon or firearm is an essential element of the offense, as in this case, “it [is] improper for the trial court to reclassify the second-degree felony to a first-degree felony.” Montgomery v. State, 704 So. 2d 548, 551 (Fla. 1st DCA 1997); see also Perry v. State, 858 So. 2d 1270, 1271 (Fla. 1st DCA 2005) (“reclassification is not proper where the use of a weapon is an essential element of the offense”); Cargle v. State, 829 So. 2d 366, 367 (Fla. 1st DCA 2002) (“When a defendant is convicted of aggravated battery based on the use of a deadly weapon, this crime cannot be enhanced based on this same use of a weapon.”). As such, we reverse and remand with instructions to resentence on the aggravated battery as a second-degree felony with a firearm and adjust the scoresheet accordingly.

Reversed and Remanded.

Per Curiam.

Wolf, Makar, and Nordby, JJ., concur.