Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WILLIE WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1619 July 1, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Christopher Sabella, Judge. Willie Williams, pro se. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. Willie Williams filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Several weeks later, Williams filed a supplemental motion to correct illegal sentence. He then filed a third motion raising essentially the same claim that he raised in the motion and supplemental motion. The postconviction court denied the original and supplemental motions on the merits in two separate orders, the first rendered April 15, 2021, and the second rendered April 27, 2021. The court denied the final motion as successive in a third order dated May 7, 2021. Williams timely appealed the April 27 and May 7 orders. The State argues that we should deny all relief, maintaining that Williams' supplemental and final motions are successive and procedurally barred. See Fla. R. Crim. 3.800(a)(2). Because the postconviction court addressed the claims in Williams' supplemental motion on the merits, we reject the State's successiveness argument as to that motion. We affirm without discussion the postconviction court's order of May 7 that correctly determined that Williams' final motion was successive. Regarding the supplemental motion and the April 27, 2021, order, Williams argues that the trial court erred in denying his motion for relief. He argues here, as he did in the supplemental motion, that the jury failed to make the requisite finding regarding his use or possession of a weapon to support reclassification of the 2 second-degree felony to a first-degree felony. The State maintains that the jury's finding was sufficient to support reclassification. We agree with Williams that his sentence was improperly reclassified pursuant to section 775.087, Florida Statutes (2006), without a clear jury finding that he actually possessed or used a weapon while committing aggravated battery causing great bodily harm. For that reason, we reverse the April 27 order denying relief and remand for resentencing. The State charged Willie Williams and his two cousins in a single information with aggravated battery causing great bodily harm with a weapon1 (count one) and aggravated battery with a deadly weapon2 (count two). Count one alleged that all three defendants committed the aggravated battery and that "during the course of the commission of the offense, carried, displayed, used, threatened to use, or attempted to use a weapon, to-wit: pipe or bat or other blunt object." Notably, the information did not specify which defendant(s) possessed or used a weapon. 1 See §§ 784.045(1)(a)1, 775.087(1)(b), Fla. Stat. (2006). 2 See § 784.045(1)(a)2. 3 The defendants were tried together, and as to count one, a jury found Williams guilty of "aggravated battery causing great bodily harm with a weapon, as charged." Accordingly, the second- degree felony was reclassified to a first-degree felony based on the use or possession of the weapon, and the trial court sentenced Williams as a prison releasee reoffender (PRR) to thirty years' imprisonment on count one.3 "Section 775.087(1) requires that a second-degree felony be reclassified to a first-degree felony when a weapon or firearm is used to commit the felony, except a felony in which the use of a weapon or firearm is an essential element." Webb v. State, 997 So. 2d 469, 471 (Fla. 2d DCA 2008); see also § 775.087(1). "Great- bodily-injury type of aggravated battery is subject to reclassification under this section . . . ." Webb, 997 So. 2d at 471 (citing Lareau v. State, 573 So. 2d 813 (Fla. 1991)). Actual possession or use of a weapon, as opposed to constructive possession, is required, and because this is a fact used to increase a defendant's sentence 3 See § 775.082(9)(a)3. On count two, Williams was convicted of the lesser included offense of battery and the trial court sentenced him to time served. 4 beyond the relevant statutory maximum, it must be found by a jury. See Thompson v. State, 862 So. 2d 955, 957–58 (Fla. 2d DCA 2004). [A]ll that is required for the application of a reclassification or enhancement statute to an offense is a clear jury finding of the facts necessary to the reclassification or enhancement "either by (1) a specific question or special verdict form (which is the better practice), or (2) the inclusion of a reference to [the fact necessary for reclassification] in identifying the specific crime for which the defendant is found guilty." Sanders v. State, 944 So. 2d 203, 207 n.2 (Fla. 2006) (quoting State v. Iseley, 944 So. 2d 227, 231 (Fla. 2006)). Here, the jury was given the option of finding Williams guilty of aggravated battery causing great bodily harm with or without a weapon, and it found Williams guilty of "aggravated battery causing great bodily harm with a weapon, as charged." (Emphasis added.) This would typically be enough to uphold the jury finding. See id.; Webb, 997 So. 2d at 471. However, although the information alleges the use or possession of a weapon during the commission of the aggravated battery causing great bodily harm and cites the applicable reclassification statute, the information was filed against Williams and two codefendants and does not identify who used or 5 possessed a weapon. Additionally, the jury was instructed on the principal theory. Therefore, the jury's verdict does not reflect a clear finding that Williams was in actual possession of or actually used a weapon, as opposed to his codefendants, because the jury may have convicted him based on the principal theory. See State v. Rodriguez, 602 So. 2d 1270, 1271 (Fla. 1992) ("[S]ection 775.087(1) does not, by its terms, allow for vicarious enhancement because of the action of a codefendant."); see also Thompson, 862 So. 2d at 958; Julian v. State, 302 So. 3d 1048, 1050 (Fla. 5th DCA 2020). A jury's failure to make the requisite finding is subject to a harmless error analysis, which looks at "whether the record demonstrates beyond a reasonable doubt that a rational jury would have found" the fact necessary for reclassification. Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007); see also Knight v. State, 6 So. 3d 733, 735 (Fla. 2d DCA 2009). Having reviewed the trial transcript, we are unable to conclude that the error was harmless. At trial, the State presented testimony from both victims and three other eyewitnesses. One of the victims could not identify anyone involved in the attack, but the other victim testified that Williams hit him with a metal object. The other three witnesses all 6 testified that Williams used or possessed a weapon during the batteries; however, there was conflicting testimony regarding the type of weapon he had and whether he was an active participant or acted as a lookout in the attacks. Williams also testified at trial and claimed that he saw one codefendant attack the first victim with a pipe while the other codefendant engaged in a "mutual fight" with the second victim. Williams denied possessing any weapons or having any involvement other than that of an onlooker. The jury may have concluded, despite the conflicting witness testimony about the details of the events, that Williams was present during the battery and culpable, at least as a principal; however, on this record, we are unable to conclude beyond a reasonable doubt that the jury would have found that Williams actually possessed or used a weapon while committing aggravated battery causing great bodily harm. As such, the lack of a clear jury finding that Williams actually possessed a weapon is not harmless and resentencing is required. Compare Galindez, 955 So. 2d at 524 (finding harmless error when evidence of victim injury based on penetration—the sentencing factor being addressed—was indisputable because the defendant admitted to having sex with the victim, who was also 7 pregnant with his child), with Williams v. State, 242 So. 3d 280, 291–92 (Fla. 2018) (holding that the jury's failure to make the necessary factual finding under section 775.082(1)(b) as to whether the juvenile defendant actually killed or intended to kill the victim was not harmless where there was "sharply conflicting evidence"). Accordingly, we reverse the April 27, 2021, order denying Williams' supplemental motion to correct illegal sentence and remand for resentencing. Affirmed in part, reversed in part, and remanded for resentencing. CASANUEVA and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 8