BENJAMIN v. STATE

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District Court of Appeal of Florida,Fourth District.

Herb BENJAMIN, Appellant, v. STATE of Florida, Appellee.

No. 4D07-4491.

Decided: April 15, 2009

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant. Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

A jury found appellant, Herb Benjamin, guilty of two counts of aggravated battery with a firearm after being instructed on both aggravated battery based upon great bodily harm and aggravated battery based upon the use of a deadly weapon.   See § 784.045(1)(a), Fla. Stat. (2007).  At sentencing, the trial court reclassified appellant's conviction from a second degree felony to a first degree felony pursuant to section 775.087(1)(b), Florida Statutes (2007), and sentenced him to life as a habitual offender with a thirty-year mandatory minimum as a prison releasee reoffender. We reverse for resentencing.

Aggravated battery is a second-degree felony which is committed by (1) causing great bodily harm or (2) using a deadly weapon. § 784.045.  Section 775.087(1)(b) requires the reclassification of certain felonies, including aggravated battery, to the next higher degree if a firearm is used during the commission of the felony, “except a felony in which the use of a weapon or firearm is an essential element.”   Because the use of a firearm is an essential element of the crime for which appellant was found guilty, the trial court erred when it reclassified appellant's convictions to first degree felonies.

We reverse and remand for the trial court to change appellant's convictions for aggravated battery with a firearm from first degree felonies to second degree felonies and to resentence him accordingly.

Reversed and Remanded.

HAZOURI, J.

WARNER, J., and SHAHOOD, GEORGE A., Senior Judge, concur.

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