author: SILBERMAN, Judge.

text:
    Gonzalo RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4416.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Gonzalo Rodriguez appeals his convictions and sentences as to various crimes and the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Although we find no reversible error as to Rodriguez’s convictions, we reverse and remand for further proceedings due to a sentencing error.

Rodriguez argues that his twenty-year sentence for aggravated battery with a deadly weapon is illegal. First, he asserts that the sentence exceeds the fifteen-year statutory maximum for that crime, which is a second-degree felony. See §§ 775.082(3)(c), 784.045(l)(a)(2), (2), Fla. Stat. (1999). Second, he contends that because the use of the weapon was an essential element of the underlying offense, the trial court could not properly reclassify the offense to a first-degree felony under section 775.087, Florida Statutes (1999), which allows reclassification of a crime when a weapon or firearm is used. See Crawford v. State, 858 So.2d 1131, 1132 (Fla. 2d DCA 2003); Brown v. State, 806 So.2d 576, 577 (Fla. 2d DCA 2002).

The State properly concedes that Rodriguez’s sentence on the aggravated battery charge is illegal. Accordingly, we reverse that sentence and. remand for further proceedings. On remand, the State will have the option of (1) agreeing that Rodriguez shall be resentenced to a legal sentence for this charge or (2) withdrawing from the plea agreement and proceeding to trial on the original charges. See Barthel v. State, 862 So.2d 28, 29 (Fla. 2d DCA 2003); see also Wallen v. State, 877 So.2d 737, 738 (Fla. 5th DCA 2004).

Reversed and remanded.

SALCINES and CANADY, JJ., Concur.

      . Rodriguez's counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This court ordered supplemental briefing regarding the legality of the sentence for aggravated battery with a deadly weapon. Thereafter, we permitted Rodriguez to withdraw the Anders brief and to file a motion to correct sentence in the trial court. Because the trial court did not rule on Rodriguez's motion within sixty days of its filing, the motion was deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001). The parties have submitted merits briefs with respect to Rodriguez’s sentence for aggravated battery with a deadly weapon.


source: Caselaw Access Project

author: | .PER CURIAM. |.CALOGERO, Chief Justice, | .WEIMER, J.,

license: Public Domain

text:
    Charles N. BRANTON v. Bryan D. HAGGERTY, Vincent Lobello, and Malise Prieto, Clerk of Court, Parish of St. Tammany.
    No. 2004-C-2182.
    Supreme Court of Louisiana.
    Aug. 26, 2004.
    Rehearing Denied Aug. 31, 2004.

       CALOGERO, C J., and JOHNSON, J., would grant a rehearing.

   | .PER CURIAM.

WRIT GRANTED. The lower courts erred as a matter of law. The lower courts’ reliance upon Cook v. Campbell, 360 So.2d 1193 (La.App. 2d Cir.1978), writ denied, 362 So.2d 573 (La.1978), is misplaced. The Cook case concerned a constitutional judgeship for the Twenty-Sixth Judicial District Court for Bossier and Webster Parishes, whereas the case presently before us concerns a statutorily created judgeship for the Slidell City Court. For the reasons assigned in the dissenting opinion in the Court of Appeal by Judge Parro, the lower courts’ judgments are reversed and set aside. Judgment is hereby rendered declaring candidates Bryan D. Haggerty and Vincent Lobello not qualified to run for the office of Judge, City Court of Slidell.

WEIMER, J., concurs in the result and assigns reasons. CALOGERO, C.J., dissents and assigns reasons. JOHNSON, J., dissents.

|.CALOGERO, Chief Justice,

dissents and assigns reasons.

I disagree with the majority’s summarily granting this writ, reversing the two lower courts, and disqualifying the two defendant candidates to Slidell City Court without oral argument and without rendering an authored majority opinion, especially with a per curiam adopting the statutory analysis of the dissenting judge in the court of appeal, which is at the least, in my view, legally suspect.

That dissent in the court of appeal relies on language in La.Rev.Stat. 18:492(A) to suggest that the qualifications for the office are those extant at the time of the primary election, rather than at the time of the general election. Yet, the language of the statute referring to “the primary election” does not seem to allude to “qualifications” but simply to the office being sought, i.e., “in the primary election.” Further, the majority’s per curiam, as did the dissent in the court of appeal, attempts to distinguish an earlier case, Cook v. Campbell, 360 So.2d 1193 (La.App. 2nd Cir.), unit denied, 362 So.2d 573 (La.1978), wherein this court denied writs and let stand an interpretation supportive of the two defendant candidates in this case.

I would at the least grant and docket the case for further study, or in the alternative, deny this writ application, especially considering that laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. See Russell v. Goldsby, 00-2595 (La.9/22/00), 780 So.2d 1048; Pattan v. Fields, 95-2375 (La.9/28/95), 661 So.2d 1320.

| .WEIMER, J.,

concurring.

I concur in the result reached by the majority because I believe the dissent by Judge Parro avoids an anomaly that would exist if either of these attorneys were to prevail in the primary election, but would not be qualified for the office “previous to his election.” See LSA-R.S. 13:2487.2.

However, I am of the opinion that this case should have been docketed for a full opinion after oral argument in light of the conflict that exists between this case and Cook v. Campbell, 360 So.2d 1193 (La.App. 2 Cir.), writ denied, 362 So.2d 573 (1978). Although the majority distinguishes the two cases, we are left with the dichotomy of having a candidate for a statutorily created judgeship being required to be qualified by the time of the primary election while a candidate for a constitutionally constituted judgeship need not be qualified until the time of the general election.

      . The writ denial in Cook stated there was "no error of law in the reasons stated by the Court of Appeal." See also Jory v. Arnette, 360 So.2d 921 (La.App. 3.1978), writ denied, 361 So.2d 1206 (La.1978). The writ denial in Jory stated the result was correct for the reasons stated in Cook.