Dominic Dimitre Dyett v. State of Florida
CourtDistrict Court of Appeal of Florida
Date FiledJune 29, 2020
Docket1D19-0256
StatusPublished
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Full Opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-256
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DOMINIC DIMITRE DYETT,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.
June 29, 2020
PER CURIAM.
Dominic Dimitre Dyett was convicted of one count of
aggravated battery with a deadly weapon and use of a firearm and
one count of home invasion robbery with a firearm. During the
course of the home invasion, Dyett pistol-whipped the victim with
the firearm. Dyett claims that the charge of aggravated battery, a
second-degree felony, was improperly reclassified as a first-degree
felony; the State agrees and concedes error. Where the use of a
weapon or firearm is an essential element of the offense, as in this
case, “it [is] improper for the trial court to reclassify the second-
degree felony to a first-degree felony.” Montgomery v. State, 704
So. 2d 548, 551 (Fla. 1st DCA 1997); see also Perry v. State, 858 So.
2d 1270, 1271 (Fla. 1st DCA 2005) (“reclassification is not proper
where the use of a weapon is an essential element of the offense”);
Cargle v. State, 829 So. 2d 366, 367 (Fla. 1st DCA 2002) (“When a
defendant is convicted of aggravated battery based on the use of a
deadly weapon, this crime cannot be enhanced based on this same
use of a weapon.”). As such, we reverse and remand with
instructions to resentence on the aggravated battery as a second-
degree felony with a firearm and adjust the scoresheet accordingly.
REVERSED and REMANDED.
WOLF, MAKAR, and NORDBY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and David Alan Henson, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.
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