IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
TIMOTHY DONALD HELTON,
CASE NO. 1D13-2656
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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Opinion filed October 6, 2017.
An appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.
Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.
ON REMAND FROM THE FLORIDA SUPREME COURT
PER CURIAM.
We originally reversed Helton’s conviction for aggravated battery and
remanded for a new trial based on this court’s decision in Floyd v. State, 151 So.
3d 452 (Fla. 1st DCA 2014). However, the Florida Supreme Court quashed our
original opinion in this case and remanded for reconsideration upon application of
its decision in State v. Floyd, 186 So. 3d 1013 (Fla. 2016). Based on that decision,
we reject Helton’s argument that the jury instructions regarding the duty to retreat
were fundamentally erroneous.
However, we agree that Helton’s conviction for aggravated battery was
improperly reclassified from a second-degree felony to a first-degree felony under
section 775.087(1), Florida Statutes (2010), based on the use of a weapon, which
was an essential element of the offense. In finding Helton guilty of aggravated
battery, the jury determined that in the course of committing the aggravated
battery, Helton both “caused great bodily harm, permanent disability or permanent
disfigurement to [the victim]” and “used a deadly weapon.” Helton’s conviction
for aggravated battery under both statutory theories cannot be reclassified pursuant
to section 775.087(1) because it cannot be determined that the conviction was not
based on the use of a deadly weapon. Frasier v. State, 132 So. 3d 365 (Fla. 1st
DCA 2014). Accordingly, we reverse and remand for resentencing of the offense
as a second-degree felony.
AFFIRMED in part; REVERSED in part; and REMANDED for
resentencing.
ROBERTS, JAY, and M.K. THOMAS, JJ., CONCUR.
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