Florida District Courts of Appeal, 2016

Tyrone D. Mosby v. State

Tyrone D. Mosby v. State
Florida District Courts of Appeal · Decided July 1, 2016 · Sawaya, Evander, Lambert
197 So. 3d 1146; 2016 Fla. App. LEXIS 10154; 2016 WL 3569891 (Southern Reporter, Third Series)

Tyrone D. Mosby v. State

Opinion

PER CURIAM.

Tyrone Mosby (“Defendant”) appeals his judgment and sentence for a series of charges pertaining to two shootings. Defendant raises five issues upon appeal, arguing that the trial court erred in: 1) denying his motion for new trial based upon alleged discovery violations; 2) preventing him from commenting upon the State’s decision not to call a witness during trial; 3) sustaining the State’s objection to a defense comment during closing argument that the reporting witness may have been the shooter; 4) finding Defendant competent to proceed to sentencing; and 5) enhancing his aggravated battery charge from a second-degree felony to a first-degree felony. We affirm the first four issues without further discussion.

However, the trial court erred in enhancing Defendant’s aggravated battery charge without a clear finding that he used a firearm in the commission of the crime. See Roberts v. State, 152 So.3d 669, 672 (Fla. 4th DCA 2014) (“[T]he enhanced penalty [must] be predicated upon a ‘clear jury finding’ that the defendant possessed a firearm during the commission of the felony.”). Based upon the State’s concession of error, we reverse the sentence imposed for aggravated battery and remand for resentencing on that charge as a second-degree felony.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, EVANDER and LAMBERT, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.