          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D16-5215
                  _____________________________

RAHEEM TIMOTHY MORRIS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.

                            May 3, 2018


JAY, J.

     In this direct appeal from his conviction and sentence for
armed carjacking and armed robbery, Morris claims that the trial
court abused its discretion by admitting evidence of his flight
attempt and denying his motion for new trial. Finding no abuse of
discretion, we affirm without further comment. However, the state
correctly concedes that Morris was illegally sentenced to life in
prison for carjacking with a “weapon,” which was a first-degree
felony punishable by a maximum of thirty years in prison absent
any allegation or jury finding that he carried a “firearm” or “deadly
weapon.” Accordingly, we reverse and remand for resentencing on
the carjacking count.
     Shortly before trial, the state amended the information to
allege that Morris carried a “weapon” during the course of
committing the carjacking and robbery based on concerns that the
alleged weapon, a BB gun, would not be considered a firearm or
deadly weapon. At trial, the jury was instructed that “[i]f you find
the defendant guilty of the crime of carjacking, you must further
determine beyond a reasonable doubt if ‘in the course of
committing the carjacking’ the defendant carried some kind of
weapon.” The jury was given the standard definition for “weapon,”
but not the standard definition for “deadly weapon” and “firearm.”
The jury returned a verdict finding Morris guilty of carjacking and
robbery as charged with the special finding that Morris carried a
“weapon” during the commission of both offenses.

      At sentencing, the trial court adjudicated Morris guilty and
sentenced him as a prison releasee reoffender to concurrent terms
of life in prison on count I (carjacking while armed with a weapon)
and thirty years in prison on count II (armed robbery). After filing
a timely notice of appeal, Morris filed a motion to correct
sentencing error pursuant to Florida Rule of Criminal Procedure
3.800(b)(2), claiming that his conviction for carjacking with a
weapon was a first-degree felony punishable by a maximum of
thirty years in prison absent any allegation or jury finding that he
carried a “firearm” or a “deadly weapon.” By operation of rule
3.800(b)(2)(B), the motion was “deemed denied.”

     Section 812.133, Florida Statutes (2015), provides in
pertinent part:

         (2)(a) If in the course of committing the carjacking
    the offender carried a firearm or other deadly weapon,
    then the carjacking is a felony of the first degree,
    punishable by imprisonment for a term of years not
    exceeding life imprisonment or as provided in s. 775.082,
    s. 775.083, or s. 775.084.

         (b) If in the course of committing the carjacking the
    offender carried no firearm, deadly weapon, or other
    weapon, then the carjacking is a felony of the first degree,
    punishable as provided in s. 775.082, s. 775.083, or s.
    775.084.

                                 2
The possession of a firearm or deadly weapon is an essential
element of armed carjacking under section 812.133(2)(a). Jacobs v.
State, 162 So. 3d 29, 32 (Fla. 4th DCA 2014). A defendant can only
be convicted of carjacking as a first-degree felony under section
812.133(2)(b)—rather than a first-degree felony punishable by life
under section 812.133(2)(a)—when the information omits any
allegation that the defendant was armed with a firearm or deadly
weapon during the carjacking. See Deleon v. State, 66 So. 3d 391,
394-95 (Fla. 2d DCA 2011); McClendon v. State, 689 So. 2d 412,
413 (Fla. 1st DCA 1997). The maximum penalty for a felony of the
first-degree is thirty years under section 775.082(3)(b), Florida
Statutes (2015). See Spencer v. State, 780 So. 2d 321, 322 (Fla. 1st
DCA 2001) (holding that the maximum sentence for unarmed
carjacking under section 812.133(2)(b) is thirty years).

      Morris claims, and the state properly concedes, that he was
illegally sentenced to life in prison for carjacking with a “weapon,”
which was a first-degree felony punishable by a maximum of thirty
years in prison absent any allegation or jury finding that he carried
a “firearm” or “deadly weapon.” Even though section 812.133(2)(b)
sets forth the punishment for unarmed carjacking when “the
offender carried no firearm, deadly weapon, or other weapon,”
there is no crime defined for armed carjacking with such “other
weapon.” Under the rule of lenity, this ambiguity in the statutory
language must be resolved in the defendant’s favor. See State v.
Byars, 823 So. 2d 740, 742 (Fla. 2002) (holding that “any ambiguity
or situations in which statutory language is susceptible to differing
constructions must be resolved in favor of the person charged with
an offense”). Because Morris qualified as a prison releasee
reoffender, the trial court was required to sentence him to the
statutory maximum of thirty years in prison. § 775.082(9)(a)3.b.,
Fla. Stat. (2015). As the trial court would have discretion to impose
a concurrent or consecutive sentence, we remand for a new
sentencing hearing on the carjacking count. See State v. Mosley,
149 So. 3d 684, 688 (Fla. 2014) (holding that a trial court may
impose consecutive PRR sentences on a defendant for crimes
committing during a single criminal episode); Thomas v. State, 204
So. 3d 549, 550 (Fla. 1st DCA 2016) (same).


                                 3
    AFFIRMED in part, REVERSED in part, and REMANDED for
resentencing.

B.L. THOMAS, C.J., and BILBREY, J., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and Victor D. Holder, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Barbara Debelius,
Assistant Attorney General, Tallahassee, for Appellee.




                                4
