Opinion
Case No. 2D02-2762
Opinion filed October 31, 2003.
Appeal from the Circuit Court for Pinellas County; Mark I. Shames, Judge.
James Marion Moorman, Public Defender, and Frank D.L. Winstead, Special Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
Errol Crawford challenges his thirty-year sentence for aggravated battery. Because the trial court erred in utilizing the weapon enhancement in section 775.087(1), Florida Statutes (1997), we reverse and remand for the trial court to resentence Crawford for a second-degree felony.
Section 775.087(1) precludes reclassification if the crime charged requires the use of a weapon as one of its essential elements. The jury was instructed that it could find Crawford guilty of aggravated battery either by finding great bodily harm or use of a deadly weapon. The jury verdict form did not make a distinction between the two types of aggravated battery. Based on the instructions given and the verdict rendered we cannot rule out the possibility that the jury found Crawford guilty of aggravated battery by use of a deadly weapon, in which case the weapon was an essential element of the offense, and enhancement was improper. See Lareau v. State, 573 So.2d 813 (Fla. 1991); Bogdanon v. State, 763 So.2d 376 (Fla. 2d DCA 2000). Accordingly, we reverse and remand for resentencing.
Reversed and remanded.
CASANUEVA,JJ., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED