Jarrell L. Lathan v. State , 218 So. 3d 510 ( 2017 )

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
JARRELL LADUNDREA LATHAN,
Appellant,
v. Case No. 5D16-389
STATE OF FLORIDA,
Appellee.
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Opinion filed May 26, 2017
Appeal from the Circuit Court
for Orange County,
Emerson R. Thompson, Jr., Senior Judge.
James S. Purdy, Public Defender, and
Allison A. Havens, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and L. Charlene Matthews,
Assistant Attorney General, Daytona
Beach, for Appellee.
PALMER, J.
Jarrell Lathan (the defendant) appeals his judgment and sentence for aggravated
battery,1 entered by the trial court after a jury found him guilty of committing numerous
offenses. He argues that the trial court’s reclassification of his aggravated battery
1 See § 784.045(1)(a), Fla. Stat. (2015).
conviction from a second-degree felony to a first-degree felony was improper because
the trial court instructed the jury on both the use-of-deadly-weapon and great-bodily-harm
forms of aggravated battery but the jury returned a general verdict. The State properly
concedes error. See Brady v. State, 65 So. 3d 599, 602 (Fla. 5th DCA 2011) (holding that
reclassification was not proper where the trial court instructed the jury on both forms of
aggravated battery and the jury returned a verdict of guilty as charged).
Accordingly, the judgment and sentence entered on the aggravated battery
conviction are reversed, and the matter remanded to the trial court for correction of the
judgment and sentencing documents to reflect the proper classification of the defendant's
aggravated battery conviction.2
REVERSED and REMANDED.
ORFINGER and EVANDER, JJ., concur.
2 For purposes of remand, we note that section 775.087(2)(a)3. of the Florida
Statutes (2015) requires a term of imprisonment of at least twenty-five years based on
the jury's special finding that the defendant discharged a firearm resulting in great bodily
harm on the aggravated battery count. See Jacobs v. State, 954 So. 2d 1268, 1269 (Fla.
2d DCA 2007).
2