          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D18-5209
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N'KOSI LERONE JONES,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.

                        September 9, 2019

PER CURIAM.

     N’Kosi Lerone Jones challenges the denial of his motion to
correct an illegal sentence which in turn challenged the
reclassification of his conviction for aggravated battery to a first
degree felony pursuant to section 775.087(1), Florida Statutes
(2011). We affirm.

     Jones was charged with aggravated battery. Such an offense
can be established in two ways: (i) the intentional infliction of
great bodily harm, permanent disability, or permanent
disfigurement; or (ii) use of a deadly weapon. § 784.045(1)(a), Fla.
Stat. (2011). The information by which Jones was charged alleged
that he did intentionally or knowingly cause great bodily harm,
permanent disability or permanent disfigurement to [the victim]
and during the commission of said battery did carry, actually
possess and discharge a firearm which caused great bodily harm.
     The jury in Jones’ trial utilized a verdict with the following
options:

                            VERDICT

WE, THE JURY, find as follows, as to the counts charged in the
Information:

__ Guilty of Aggravated Battery as charged:

     1. If you find the defendant guilty of Aggravated Battery, do
    you find that the defendant committed the Aggravated
    Battery by:

      ____ a. Intentionally causing great bodily harm

      ____ b. Using a deadly weapon

      __ c. Both

     2. If you find the defendant guilty of Aggravated Battery
    using a deadly weapon, was that weapon a firearm?

      ___ Yes       ____ No

      3. If you find the defendant guilty of Aggravated Battery
    with a firearm, did the defendant actually possess the
    firearm?

      ___ Yes       ____ No

     4. If you find the defendant guilty of Aggravated Battery, do
    you find that the defendant in committing the Aggravated
    Battery actually discharged the firearm?

         Yes        ____ No

____ Guilty of Felony Battery, a lesser included offense.

____ Guilty of Battery, a lesser included offense.

____ Not Guilty.

                         _______________
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      An aggravated battery is generally a second degree
felony. § 784.045(2), Fla. Stat. (2011).          However, 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 is not subject to reclassification. In Lareau v.
State, 573 So. 2d 813 (Fla. 1991), the Florida Supreme Court held
that the offense of aggravated battery causing great bodily harm
is subject to enhancement under section 775.087(1), while the
offense of aggravated battery with a deadly weapon is not.

     In Cabral v. State, 944 So. 2d 1026, 1027 (Fla. 1st DCA 2006),
this Court held that when “it is unclear whether appellant was
found guilty of aggravated battery based on great bodily harm or
the use of a deadly weapon, enhancement of his sentence for the
use of a deadly weapon pursuant to section 775.087(1), Florida
Statutes, was not permissible.” See Frasier v. State, 132 So. 3d 365
(Fla. 1st DCA 2014) (holding that because the jury returned a
verdict finding the defendant guilty of aggravated battery causing
permanent disability, permanent disfigurement, or great bodily
harm and with a deadly weapon, the sentence could not be
reclassified pursuant to section 775.087(1)); and Helton v. State,
227 So. 3d 228 (Fla. 1st DCA 2017) (same).

     Here, Jones’ conviction was reclassified as a first degree
felony. He argues that reclassification is erroneous because it is
not clear from the verdict that use of a firearm was found to be an
element of the conviction for aggravated battery. We disagree. By
selecting the verdict option “Both,” the jury found that either way
of proving aggravated battery was established beyond a reasonable
doubt. Thus, aggravated battery by causing great bodily harm was
independently established in the instant case. See Hurry v. State,
978 So. 2d 854 (Fla. 1st DCA 2008) (affirming the reclassification
of an aggravated battery conviction where it was clear from the
verdict that the offense of aggravated battery was independently
established by proof of great bodily harm and therefore the use of
a weapon was not an essential element of the offense); Harrell v.
State, 150 So. 3d 858, 862 (Fla. 2d DCA 2014) (“In order to support
the enhancement under section 775.087(1), the jury must be given
the option of finding the defendant guilty of aggravated battery
with great bodily harm without also finding the defendant guilty

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of aggravated battery with a deadly weapon.”). To hold otherwise
would frustrate the legislative intent to increase punishment “as
the degree of actual injury or potential for serious injury becomes
greater.” Lareau, 573 So. 2d at 815.

    Therefore, the trial court correctly reclassified the conviction
from a second degree felony to a first degree felony. The denial of
the motion to correct sentence is AFFIRMED.

RAY, C.J., and BILBREY and JAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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N'Kosi Lerone Jones, pro se, Appellant.

Ashley Moody, Attorney General, and Barbara Debelius, Assistant
Attorney General, Tallahassee, for Appellee.




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