Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-891 _____________________________ KEITH GEORGE PERRY, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant. _____________________________ On appeal from the Circuit Court for Alachua County. Mark W. Moseley, Judge. March 26, 2021 BILBREY, J. Keith George Perry appeals the judgment entered against him following the jury’s verdict finding him guilty of aggravated battery. The jury specifically found that Perry “did use a deadly weapon to intentionally or knowingly cause great bodily harm, permanent disability or permanent disfigurement” to the victim. The State cross-appeals the fifteen-year prison release reoffender sentence, * alleging error in the trial court’s sentencing the offense * See § 775.082(9), Fla. Stat. (2019) (requiring that commission of aggravated battery within three years of release from a previous felony sentence requires a fifteen-year sentence regardless of sentencing guidelines). as a second-degree felony and not reclassifying the aggravated battery to a first-degree felony. We affirm the direct appeal and reverse and remand for resentencing on the cross-appeal. Perry raises several issues in his direct appeal. Our review of the record reveals no support for reversal on any of these points. As to Perry’s challenge to the trial court’s denial of his motion for a judgment of acquittal, we note the current standard for evaluating such a motion is set out in Bush v. State, 295 So. 3d 179 (Fla. 2020). The evidentiary standard argued by Perry as described in Ponsell v. State, 393 So. 2d 635, 636–37 (Fla. 4th DCA 1981), requiring proof of “each and every necessary element of the offense charged beyond a reasonable doubt” before an offense can be submitted to a jury, is not the current standard. See, e.g., Hathaway v. State, 46 Fla. L. Weekly D256, 2021 WL 282279 (Fla. 1st DCA Jan. 28, 2021). We affirm the judgment on direct appeal without further comment. The State’s cross-appeal of the fifteen-year sentence is well taken. The State preserved the issue for appellate review during sentencing, and the trial court expressed its reasoning for not re- classifying the aggravated battery to a first-degree felony based on the State’s charging document. The Second Amended Information charged Perry with striking the victim and knowingly causing great bodily harm or using a deadly weapon. Although challenged at trial, there was ample evidence at trial to prove the extent of the victim’s injuries. In addition, the evidence was uncontroverted that the victim was clubbed in the back of the head with a piece of firewood from a backyard grill. The only other dispute was whether Perry was the perpetrator. The jury found Perry “guilty of aggravated battery,” and chose a specific finding on the method in the jury verdict form as follows: 1. The defendant is guilty of aggravated battery. We the jury do further find beyond a reasonable doubt (choose one only) A. The defendant did use a deadly weapon to intentionally or knowingly cause great bodily harm, 2 permanent disability, and permanent disfigurement to [victim]. B. The defendant did intentionally or knowingly cause great bodily harm, permanent disability, and permanent disfigurement to [victim]. C. The defendant used a Deadly Weapon. The jury had the option to find aggravated battery based only on great bodily harm (B), based only on use of a deadly weapon (C), or based on use of a deadly weapon to cause great bodily harm (A). The jury chose A, describing both use of a deadly weapon and causing great bodily harm. Section 775.087(1), Florida Statutes (2019), requires reclassification of a second-degree felony to a first-degree felony if a weapon is used, “except a felony in which the use of a weapon or firearm is an essential element.” In Jones v. State, 279 So. 3d 84 (Fla. 1st DCA 2019), this court affirmed the reclassification of aggravated battery to a first-degree felony where the jury found the appellant had committed both methods of aggravated battery—inflicting great bodily harm and using a deadly weapon. Likewise, in Hurry v. State, 978 So. 2d 854 (Fla. 1st DCA 2008), this court affirmed the reclassification where the jury found great bodily harm and the use of a deadly weapon. In Hurry we stated that it was “clear that the aggravated battery here is independently established by the great bodily harm, and the use of a deadly weapon is thus not an essential element of the aggravated battery.” Id. At Perry’s trial, the extent of the harm caused to the victim was a contested issue, and the State presented extensive evidence to prove the element of great bodily harm. The jury then found that the aggravated battery was committed by Perry by use of a deadly weapon to inflict the great bodily harm. The jury had the option to reject the great bodily harm element of aggravated battery and find only that a deadly weapon was used. With such a finding reclassification would not have been permitted under section 775.087(1). Instead, the jury chose the option of aggravated battery by infliction of great bodily harm and the use 3 of a deadly weapon. So as in Hurry and Jones, the jury’s verdict here was supported by the evidence independently establishing great bodily harm. The jury’s finding that Perry used a deadly weapon was in addition to, not an essential element of, the aggravated battery. As a result, the trial court erred in denying reclassification as required by section 775.087(1). The judgment is therefore affirmed, but the fifteen-year sentence is reversed and remanded for reclassification and re- sentencing pursuant to section 775.087(1). AFFIRMED in part, REVERSED in part, and REMANDED for resentencing. NORDBY and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant/Cross-Appellee. Ashley Moody, Attorney General, and Robert “Charlie” Lee, Assistant Attorney General, Tallahassee, for Appellee/Cross- Appellant. 4