Simmons v. State
Simmons v. State
Opinion of the Court
Frank Simmons was convicted of a number of offenses arising out of a crime spree in
The trial court sentenced Mr. Simmons to fifteen years’ imprisonment for aggravated assault with a firearm. This crime is a third degree felony. § 784.021(2), Fla.Stat. (1993). The enhancement provisions contained in section 775.087(1), Florida Statutes (1993), cannot be applied because use of a deadly weapon, here a firearm, is a necessary element of the charge. Rodriguez v. State, 650 So.2d 1111, 1112 (Fla. 2d DCA 1995). The maximum sentence for a third degree felony is a term of imprisonment not exceeding five years. § 775.082(3)(d), Fla.Stat. (1993). The trial court erred in imposing a sentence that exceeded the statutory maximum. Accordingly, we reverse and remand for resentenc-ing pursuant to this opinion. Mr. Simmons need not be present at resentencing.
Affirmed in part, reversed in part and remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.