Aggravated Battery – Classification for Sentencing

Florida law permits a court to reclassify a second-degree felony of aggravated battery to a first-degree felony when a firearm is used in the commission of a crime

          In Hernandez v. State, the Third District Court of Appeals recently reexamined the forms of aggravated battery and when reclassification may be done for sentencing purposes.  Defendant was convicted in the trial court of aggravated battery and this conviction was sentenced as a first-degree felony.  The information alleged that defendant committed an aggravated battery by actually and intentionally touching or striking another person against that person’s will, that the defendant acted knowingly and intentionally to cause great bodily harm and/or permanent disfigurement and/or permanent disfigurement and during the course of the act, the defendant possessed a firearm or destructive device.  

Defendant allegedly attacked the victim with a handgun with resulted in head wounds, broken fingers, and a severed finger.  In closing, the prosecutor failed to distinguish between the two types of battery inherent in Florida criminal law.  This first type of aggravated battery is that which causes great bodily harm.  The second is aggravated battery which involves the use of a deadly weapon.  The jury in the Hernandez case checked the aggravated battery box and also the sub-box which indicated the offense was done with a firearm.  In sentencing, the trial court reclassified the aggravated battery to a first degree felony.  Florida law permits a court to reclassify a second-degree felony to a first-degree felony when a firearm is used in the commission of a crime, except where the use of a firearm is already an essential component of the crime.  An aggravated battery inflicting great bodily harm may be enhanced to a first degree felony if a deadly weapon is used in the commission of the crime.  However, an aggravated battery using a deadly weapon may not be reclassified to a first degree felony because the existence of the deadly weapon is an essential element of the crime.  Case law holds that if it is unclear what form of battery the jury convicted of, the court may not reclassify the offense to a first-degree felony.   As such, the appellate court held that the reclassification was improper and reversed and remanded for re-sentencing.  

The court also considered if the defense attorney’s failure to object to the trial court’s reclassification constituted in effective assistance of counsel.  Ineffective assistance of counsel is assessed by the test set forth in the United States Supreme Court decision in Strickland v. Washington.  The defendant must prove that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.  The appellate court ruled that defendant’s counsel failure to object to the reclassification did in-fact constitute ineffective assistance of counsel.  

Article by attorney Denise Grass for William Moore, P.A. 

Questions regarding the reclassification of felony crimes contact the criminal law offices of William Moore, P.A.

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