         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


TYRONE DAVID MOSBY,

             Appellant,

 v.                                                   Case No. 5D14-2825

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed July 1, 2016

Appeal from the Circuit Court
for Orange County,
Julie H. O'Kane, Judge.

James S. Purdy, Public Defender, and Jeri
M. Delgado, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kellie A. Nielan, Assistant
Attorney General, Daytona Beach, for
Appellee.


PER CURIAM.

      Tyrone Mosby (“Defendant”) appeals his judgment and sentence for a series of

charges pertaining to two shootings. Defendant raises five issues upon appeal, arguing

that the trial court erred in: 1) denying his motion for new trial based upon alleged

discovery violations; 2) preventing him from commenting upon the State’s decision not to
call a witness during trial; 3) sustaining the State’s objection to a defense comment during

closing argument that the reporting witness may have been the shooter; 4) finding

Defendant competent to proceed to sentencing; and 5) enhancing his aggravated battery

charge from a second-degree felony to a first-degree felony. We affirm the first four

issues without further discussion.

       However, the trial court erred in enhancing Defendant’s aggravated battery charge

without a clear finding that he used a firearm in the commission of the crime. See Roberts

v. State, 152 So. 3d 669, 672 (Fla. 4th DCA 2014) (“[T]he enhanced penalty [must] be

predicated upon a ‘clear jury finding’ that the defendant possessed a firearm during the

commission of the felony.”). Based upon the State’s concession of error, we reverse the

sentence imposed for aggravated battery and remand for resentencing on that charge as

a second-degree felony.

       AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, EVANDER and LAMBERT, JJ., concur.




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