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OSORIO v. STATE
PER CURIAM.
Wilson Osorio appeals his sentence of 230 months' imprisonment for third-degree murder. Mr. Osorio contends that the trial court improperly reclassified this offense pursuant to section 775.087(1), Florida Statutes (1997), because the use of a firearm was an element of the charged offense. We agree, and thus reverse the sentence.
Mr. Osorio was charged with first-degree murder of Jose Perez-Medina. The information alleged that Mr. Osorio killed Mr. Perez-Medina by shooting him with a firearm. At trial, Mr. Osorio claimed that the shooting was not intentional or premeditated, but rather was committed in self-defense. Accordingly, the jury was instructed on the lesser-included offense of third-degree (felony) murder, based on the underlying felony of aggravated assault.
See § 782.04(1)(a)(1), Fla. Stat. (1997).
See §§ 782.04(4), 784.021(1)(a), Fla. Stat. (1997) (with a deadly weapon, without intent to kill).
The trial court instructed the jury that an aggravated assault was an intentional and unlawful threat made with the use of a deadly weapon, thereby creating a well-founded fear that violence is about to take place. Therefore, in order to find Mr. Osorio guilty of third-degree murder, the jury had to find that he committed an aggravated assault with a deadly weapon. The jury returned a verdict of guilty on this lesser-included offense.
The trial court gave the standard jury instruction for aggravated assault committed with a deadly weapon without intent to kill. The trial court did not instruct the jury on aggravated assault as an assault made with an intent to commit a felony, see § 784.021(1)(b), nor would the evidence presented have supported such an instruction.
The sentencing scoresheet listed the offense as "third-degree murder w/fa," and classified the offense as a first-degree felony and a level 9 offense. The scoresheet provided for a sentencing range between 138 months and 230 months. The trial court sentenced Mr. Osorio to the maximum scoresheet sentence of 230 months.
Third-degree murder is a second-degree felony and a level 8 offense. See § 921.0012(3), Fla. Stat. (1997). The State argues that the level 9 classification on the scoresheet was the result of reclassification based upon section 775.087(1), which allows reclassification for use of a weapon or firearm. We recognize it is possible to commit a third-degree murder without a weapon or firearm. However, the information and the jury instruction in this case caused the use of a firearm to be an essential element of the offense. Under these circumstances, the reclassification was error. See Gonzalez v. State, 585 So.2d 932 (Fla. 1991); Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989).
Properly classified, the offense in this case would result in a maximum scoresheet sentence of 208 months of imprisonment. Therefore, we reverse and remand for resentencing.
ALTENBERND, A.C.J., CASANUEVA and DAVIS, JJ., Concur.
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