5D10-3991 Bill Brady v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-3991

Case Date: 07/11/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

BILLY B. BRADY, JR., Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed July 15, 2011 3.800 Appeal from the Circuit Court for Orange County, Alan S. Apte, Judge. Michael R. Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D10-3991

PALMER, J. Billy B. Brady, Jr., (defendant) appeals the order entered by the trial court summarily denying his motion to correct illegal sentence filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. We affirm the trial court's denial of the defendant's double jeopardy claim as successive, but reverse the trial court's denial of the defendant's claim that his conviction was improperly reclassified.

The defendant was convicted of committing the crime of aggravated battery on a law enforcement officer with a special finding that he carried a firearm.1 The trial court sentenced the defendant to an upward departure sentence of a term of life imprisonment. The defendant appealed his judgment and sentence, arguing among other things, that his double jeopardy rights were violated when he was retried on the charge of aggravated battery of a law enforcement officer because the trial court had reversed an earlier conviction for attempted manslaughter. We affirmed the defendant's judgment and sentence. See Brady v. State, 717 So. 2d 112 (Fla. 5th DCA 1998). The defendant later filed a motion pursuant to rule 3.850 of the Florida Rules of Criminal Procedure in which he again alleged that his conviction was obtained in violation of the protection against double jeopardy. The trial court denied the motion and we affirmed that ruling. See Brady v. State, 787 So. 2d 871 (Fla. 5th DCA 2001). The defendant then filed the instant motion to correct illegal sentence alleging that his sentence is illegal for two reasons. First, the defendant alleges that his conviction should not have been reclassified, and thus his sentence enhanced, based on his use of a firearm because the jury was instructed regarding both the great bodily harm option and the deadly weapon option of aggravated battery and returned a general verdict thereon. The defendant maintains that it was error for the trial court to reclassify the degree level on the battery conviction because, if the jury found that his aggravated battery conviction arose from his use of a deadly weapon (and not because he inflicted great bodily harm), then his use of the weapon was an essential element of

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