section 775.087(1) use of a weapon in Florida

2018We also recede from our statement in Houck that "it is for the court to determine whether what is used in the commission of a felony is a weapon within the meaning of the statute." Houck , 652 So.2d at 360 .

2018Id.

2019For example, Robbery with a Firearm, Robbery with a Deadly Weapon, and Robbery with a Weapon cannot be reclassified with the firearm or weapon portion of § 775.087(1), Fla. Stat. Similarly, Aggravated Battery (via use of a deadly weapon) cannot be reclassified with the firearm or weapon portion of § 775.087(1), Fla. Stat. However, Aggravated Battery (via intentionally or knowingly causing great bodily harm, permanent disability, or permanent disfigurement) can be reclassified with the firearm or weapon portion of § 775.087(1), Fla. Stat. The requirement that the defendant personally carried, e

2019In Cabral v. State, 944 So. 2d 1026, 1027 (Fla. 1st DCA 2006), this Court held that when “it is unclear whether appellant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement of his sentence for the use of a deadly weapon pursuant to section 775.087(1), Florida Statutes, was not permissible.” See Frasier v. State, 132 So. 3d 365 (Fla. 1st DCA 2014) (holding that because the jury returned a verdict finding the defendant guilty of aggravated battery causing permanent disability, permanent disfigurement, or great bodily harm and with a deadl

2019In Cabral v. State, 944 So. 2d 1026, 1027 (Fla. 1st DCA 2006), this Court held that when “it is unclear whether appellant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement of his sentence for the use of a deadly weapon pursuant to section 775.087(1), Florida Statutes, was not permissible.” See Frasier v. State, 132 So. 3d 365 (Fla. 1st DCA 2014) (holding that because the jury returned a verdict finding the defendant guilty of aggravated battery causing permanent disability, permanent disfigurement, or great bodily harm and with a deadl

2019This instruction was adopted in 1981 and amended in 2011 [ 73 So. 3d 136 ] and 2019. 3.3(b) AGGRAVATION OF A FELONY BY CARRYING A WEAPON OTHER THAN A FIREARM § 775.087(1), Fla. Stat. If you find that (defendant) committed (felony, as identified by § 775.087(1), Fla. Stat.) and you also find beyond a reasonable doubt that during the commission of the crime [he] [she] personally [carried] [displayed] [used] [threatened to use] [attempted to use] a weapon, you should find [him] [her] guilty of (felony) with a weapon.

2015See e.g., Chase v. State, 74 So.3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So.2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in a

2015See e.g., Chase v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in

2015See e.g., Chase v. State, 74 So.3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So.2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in a

2015See e.g., Chase v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in

2015See e.g., Chase v. State, 74 So.3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So.2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in a

2015See e.g., Chase v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in

2015See e.g., Chase v. State, 74 So.3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So.2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in a

2015See e.g., Chase v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in

2015See e.g., Chase v. State, 74 So.3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So.2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in a

2015See e.g., Chase v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in

2015See e.g., Chase v. State, 74 So.3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So.2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in a

2007Cabal v. State, 678 So.2d 315 (Fla.1996), which appellant cites, has been superseded by the 1997 amendment to section 775.0845, which clarified the legislative intent to reclassify.

2007Roberts v. State, 923 So.2d 578 (Fla. 5th DCA 2006) (no double jeopardy where habitual felony offender enhancement was applied to an offense which was reclassified due to the use of a weapon under section 775.087(1)).

2006Perry v. State, 858 So.2d 1270 (Fla. 1st DCA 2003), and Dozier v. State, 677 So.2d 1352 (Fla. 2d DCA 1996).

2004As we stated in Hill v. State, 862 So.2d 815 (Fla. 4th DCA 2003), it is improper to sentence a defendant who meets the requirements for sentencing under the PRRPA under another sentencing statute where the sentence imposed under the other statute is not greater than that imposed under the PRRPA.