Florida District Courts of Appeal, 2011

Williams v. State

Williams v. State
Florida District Courts of Appeal · Decided September 21, 2011 · Rothenberg, Lagoa, Schwartz
69 So. 3d 402; 2011 Fla. App. LEXIS 14980; 2011 WL 4374267 (Southern Reporter, Third Series)

Williams v. State

Opinion

CONFESSION OF ERROR

PER CURIAM.

Based upon the State’s proper confession of error, we hold that the trial court erred in reclassifying defendant’s trafficking conviction from a first-degree felony to a life felony, pursuant to section 775.087(1), Florida Statutes (2003) (providing, in part, that felony must be reclassified to a higher degree when the defendant commits the offense with a firearm). As the State concedes, the record lacks the required evidence that the defendant had physical possession of a firearm during the commission of the offense. See Campbell v. State, 935 So.2d 614, 617-18 (Fla. 3d DCA 2006); Green v. State, 18 So.3d 656, 658 n. 2, 659 n. 4 (Fla. 2d DCA 2009); Postell v. State, 971 So.2d 986, 988-89 & n. 5 (Fla. 5th DCA 2008); Parker v. State, 906 So.2d 1273 (Fla. 5th DCA 2005). Accordingly, we re *403 verse and remand for the trial court to strike the firearm enhancement and to re-sentence the defendant for the first-degree felony offense of trafficking.

Reversed and remanded.

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