Opinion
Case No. 4D01-4891.
Opinion filed February 19, 2003.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert Makemson, Judge; L.T. Case No. 01-542-CFB.
Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
Charlie Crist, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
We affirm on all issues except for one, involving appellant's two convictions of aggravated battery. The trial court erred by reclassifying appellant's two convictions to first-degree felonies under section 775.087(1)(b), Florida Statutes (2000). As charged and established at trial, the aggravated battery charges included a weapon or a firearm as "an essential element" within the meaning of section 775.087(1). See Lareau v. State, 573 So.2d 813, 815 (Fla. 1991) (finding that aggravated battery predicated on use of a deadly weapon is not subject to reclassification pursuant to section 775.087(1) because the use of the weapon is an essential element of the crime); Osorio v. State, 746 So.2d 490, 491 (Fla.2d DCA 1999) (holding that reclassification was error because the information and jury instructions established that the use of a firearm was an essential element of aggravated battery);McCormack v. State, 728 So.2d 335 (Fla.2d DCA 1999) (holding that aggravated battery charge should not be reclassified when use of a deadly weapon is an essential element of the offense).
GROSS, MAY, JJ., and DAMOORGIAN, DORIAN, Associate Judge, concur.