Florida/Georgia Personal Injury & Workers Compensation

...[11] Such other proceedings may involve use of one or more of the enhancement statutes. The most notable of these statutes involve career criminals. See § 775.084, Fla. Stat. (2001). However, there are other statutes which allow the courts to reclassify the offense and thus exceed the statutory maximum sentence: section 775.0845, Florida Statutes (2001), wearing a mask during the commission of a crime; section 775.085, Florida Statutes (2001), hate crimes; section 775.087, Florida Statutes (2001), possession of a weapon during the commission of a crime; and...

...Comments This instruction should not be given in conjunction with the instructions pertaining to any felony in which the use of a weapon or firearm is an essential element. This instruction was adopted July 1992 and amended in 2011. 3.3(e) AGGRAVATION OF A FELONY BY WEARING A HOOD, MASK, OR OTHER DEVICE TO CONCEAL IDENTITY § 775.0845, Fla....

...Gen., Daytona Beach, for appellee. SHARP, Judge. Fletcher appeals from his conviction of attempted robbery with a weapon. He maintains the state presented insufficient evidence that a weapon was used. He also challenges the trial court's application of section 775.0845, Florida Statutes (1983), which enhances the penalty for an offense where the offender, while committing the offense, wears a device that conceals his identity....

...Next, Fletcher maintains the trial court erred by overruling his objection to the state's special verdict form which reads: We, the jury, find that while committing this offense, the defendant was wearing devices that concealed his identity. The state derived this special verdict form from section 775.0845, Florida Statutes (1983), which provides in pertinent part: Wearing masks while committing offense; enhanced penalties....

...At trial, a police officer testified that he had seen Fletcher on several occasions and that each time he was dressed as a woman. The officer stated further, however, that he did not know whether Fletcher always dressed like that. There was no other evidence at trial on this issue. *540 To-date, no Florida case has discussed section 775.0845, Florida Statutes (1983) except to characterize it as an enhancement statute....

...5th DCA 1985); Walcott v. State, 460 So.2d 915 (Fla. 5th DCA 1984); Cuthbert v. State, 459 So.2d 1098 (Fla. 1st DCA 1984); Cooper v. State, 455 So.2d 588 (Fla. 1st DCA 1984), review denied, 464 So.2d 554 (Fla. 1985). Nor is the legislative history of section 775.0845 particularly enlightening....

...[4] The officer's testimony in this case does not preclude the reasonable inference that Fletcher's disguise under the circumstances was a device used to facilitate his criminal behavior. Accordingly, under the facts presented at trial, we conclude that the court did not err by allowing the special verdict pertaining to section 775.0845. We decline to address the defendant's constitutional attack on section 775.0845, Florida Statutes (1983), because he did not challenge the statute below on those grounds and we find no fundamental error....

...DAUKSCH, J., dissents with opinion. DAUKSCH, Judge, dissenting: I respectfully dissent. In my opinion the wearing of women's clothing by a man is not the wearing of a "hood, mask, or other device that concealed his identity" such as the legislature meant to proscribe in the statute 775.0845....

...A court should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Lynch v. State, 293 So.2d 44 (Fla. 1974). [3] Section 775.0845 was enacted as part of Chapter 81-249 which legislative history reads: WHEREAS, the Supreme Court of Florida, in Robinson v....

...The portion of the Comment relied upon by the state is as follows: The legislature has also provided that enhanced penalties may be imposed under specific circumstances (§ 775.084, Fla. Stat. (1981), habitual offender, § 775.087, Fla. Stat. (1981), use of a weapon or firearm in commission of a felony, and § 775.0845, Fla....

...titioner. Robert A. Butterworth, Attorney General and Keith S. Kromash, Assistant Attorney General, Miami, for Respondent. OVERTON, Justice. We have for review Cabal v. State, 656 So.2d 290 (Fla. 3d DCA 1995). In Cabal, the district court found that section 775.0845, Florida Statutes (1993), which imposes an enhanced penalty for wearing a mask while committing a felony, acted to reclassify the underlying felony to a distinct, separate crime of the next higher degree....

...5th DCA 1994), and Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993). [1] For the reasons expressed, we agree with the district court decisions in Woods, Archibald, and Spicer, and quash the decision of the Third District Court in this case because we find that section 775.0845, as it existed at the time of this offense, is a penalty enhancement statute rather than a substantive reclassification statute....

...Cabal was adjudicated guilty under section 812.13(2)(c), Florida Statutes (1993), which provides that the offense of robbery is a second-degree felony. In sentencing Cabal, the trial judge reclassified and scored Cabal's conviction under the sentencing guidelines as a first-degree felony under the authority of section 775.0845(4)....

...ntence, relying on the First District Court of Appeal's decision in Jennings v. State, 498 So.2d 1373 (Fla. 1st DCA 1986), but certified conflict with Woods, Archibald, and Spicer. In *317 Jennings, the First District Court of Appeal determined that section 775.0845 requires that an offense coming under the statute "shall be punishable as if it were reclassified upward as an offense of the next higher degree." 498 So.2d at 1374. On the other hand, in Woods, Archibald, and Spicer, the Fifth and Second District Courts of Appeal found that section 775.0845 does not reclassify the offense but acts only to enhance the penalty in a manner similar to the application of the habitual offender statute. [2] Section 775.0845, [3] as it existed at the time of this offense, provides in pertinent part as follows: Wearing mask while committing offense; enhanced penalties....

...(3) A felony of the third degree shall be punishable as if it were a felony of the second degree. (4) A felony of the second degree shall be punishable as if it were a felony of the first degree. (Emphasis added.) We find that the plain language of section 775.0845, which is entitled "Wearing mask while committing offense; enhanced penalties " (emphasis added), requires that the penalty be increased rather than the offense reclassified....

...Nowhere in the statute does the legislature make reference to reclassifying this conduct as a distinct, substantive offense. The statute speaks only to an increase in the penalty. As the Second District Court of Appeal correctly stated in Spicer, "[i]f the legislature had intended section 775.0845 to reclassify offenses, it would have so stated." 615 So.2d at 726....

...Notably, the statute at issue in this case was enacted in 1981, which was two years before the enactment of the sentencing guidelines and seven years before the addition of the committee note relied on in Jennings. [4] Neither the sentencing guidelines nor the committee note in issue amended the language of section 775.0845. Further, as conceded by the State at oral argument, before the enactment of the sentencing guidelines, an offense under section 775.0845 would not have been reclassified....

...State, 576 So.2d 1310 (Fla.1991). Further, when a statute is susceptible to more than one meaning, the statute must be construed in favor of the accused. Scates v. State, 603 So.2d 504 (Fla.1992). Because the sentencing guidelines did not amend the plain language of section 775.0845 in any way, we must reject the State's argument that the committee note to the sentencing guidelines now requires reclassification under that statute....

...with some precision exactly what is prohibited. Words and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute. 576 So.2d at 1312 (citations omitted). Accordingly, we hold that section 775.0845, as it existed at the time of this offense, is a penalty enhancement statute rather than a substantive reclassification statute....

...ll be increased so as to be punishable as if it were the greater crime. Contrary to the rationale of the majority, I believe it is significant that subparagraph (d)(10) of Florida Rule of Criminal Procedure 3.701 was published after the enactment of section 775.0845. The rule gave effect to the obvious legislative intent of wanting to enhance the punishment for certain crimes by treating them as if they were a greater degree of offense. As interpreted by the majority, section 775.0845 will have little effect because it will only come into play in those isolated instances when there is a departure sentence or when the offender's guideline points are so great as to call for a sentence above the statutory maximum of the offense committed. I respectfully dissent. WELLS, J., concurs. NOTES [1] We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. [2] § 775.084, Fla.Stat. (1993). [3] We recognize that the legislature amended section 775.0845, effective October 1, 1995, but the amended statute is not at issue in this proceeding. Section 775.0845 was amended effective October 1, 1995, with the addition of the following language to the statute: "For purposes of sentencing under chapter 921 ... a felony offense which is reclassified under this subsection is ranked one level above the ranking under s. 921.0012 or s. 921.0013 of the offense committed." § 775.0845, Fla.Stat....

...mask, [3] and Count III, unlawful display, use, and carrying a firearm (a shotgun) while committing a felony (armed robbery) while wearing a hood or mask. [4] Wearing a hood or mask while committing an offense enhances the degree of felony charged. § 775.0845, Fla....

...Admittedly, in some instances such a distinction may be without a difference in its practical effect, but the legislature has chosen to make a distinction. Enhancement is commonly associated with the province of the judge in sentencing, as in the case of habitual offenders, section 775.084, and the wearing of a mask, section 775.0845....

...of property (larceny, robbery, obtaining by false pretense, forgery, uttering, arson, etc.), and substantively different crimes mala prohibita. See generally Burdick, Vol. 1, Law of Crime, p. 86, Chapter VI, Classification of Crimes. [7] See, e.g., § 775.0845, Fla....

...Second, effective October 1, 1996, rule 3.703(c)(2) of the Florida Rules of Criminal Procedure was amended to provide: "An offense does not become unlisted and subject to the provisions of section 921.0013, because of a reclassification of the degree of felony pursuant to section 775.0845, section 775.087, section 775.0875 or section 794.023." See Amendments to Florida Rules of Criminal Procedure re: Sentencing Guidelines, 685 So.2d 1213,1214 (Fla.1996)....

...Appellant Norman Gary Billiot appeals from a judgment and sentence for first degree burglary with a battery, two counts of aggravated battery, and two counts of aggravated assault. He raises two issues on appeal: (1) whether the trial court erred in enhancing his sentence pursuant to section 775.0845, Florida Statutes for use of a mask *1278 during commission of the assaults in counts 5 and 6 where the information did not charge that he wore a mask during the commission of those offenses; and (2) whether his convictions for both...

...d that: The legislature has also provided that enhanced penalties may be imposed under specific circumstances (§ 775.084, Fla. Stat. (1981), habitual offender, § 775.087, Fla. Stat. (1981), use of a weapon or firearm in commission of a felony, and § 775.0845, Fla....

...The state filed the required notice, seeking to have him sentenced as a habitual offender. Robbery is a second-degree felony punishable by up to fifteen years' imprisonment. §§ 812.13(2)(c) and 775.082(3)(c), Fla. Stat. (1989). If, however, a mask was worn during the commission of the robbery, section 775.0845(4), Florida Statutes (1989), provides that the offense "shall be punishable as if it were a felony of the first degree," permitting a maximum penalty of thirty years. In this case, the trial court interpreted section 775.0845(4) as requiring robbery with a mask to be reclassified as a first-degree felony. The court then used the first-degree conviction to sentence Spicer to life imprisonment under the habitual offender *726 statute, section 775.084(4)(a)(1), Florida Statutes (1989). Spicer argues that although section 775.0845 is an enhanced penalty statute, it does not reclassify the degree of felony....

...Penal statutes must be construed in terms of their literal meaning. State v. Jackson, 526 So.2d 58 (Fla. 1988). Words used by the legislature will not be expanded to broaden the definition of such statutes. Perkins v. State, 576 So.2d 1310 (Fla. 1991). If the legislature had intended section 775.0845 to reclassify offenses, it would have so stated, as it did in section 775.087, Florida Statutes (1989): "Possession or use of weapon; aggravated battery; felony reclassification; " and in section 775.0875, Florida Statutes (1989): "U...

...f the enhanced penalty statutes reclassify the degree of the offense. See Dominguez v. State, 461 So.2d 277 (Fla. 5th DCA 1985). The trial court was therefore placed in an "either-or" situation. The court could use the enhanced penalty provisions of section 775.0845 and impose a guidelines sentence not exceeding thirty years or it could use the second-degree felony conviction to sentence Spicer as a habitual offender to a maximum of thirty years' imprisonment....

...The statute's language clearly reveals that only the penalty is enhanced, i.e., in terms of years. The degree of offense remains the same. See Cuthbert v. State, 459 So.2d 1098 (Fla. 1st DCA 1984), pet. for rev. denied 467 So.2d 1000 (Fla. 1985); Hall v. State, 483 So.2d 549 (Fla. 1st DCA 1986). However on its face, § 775.0845, Florida Statutes (1985), the mask statute, reveals language that distinguishes it from the habitual offender statute....

...Therefore for example, the trial court was correct in reclassifying appellant's act of burglary of a dwelling, a second degree felony, to a first degree felony, because during the commission of the offense appellant was wearing a "device that concealed his identity." Section 775.0845(4), Florida Statutes (1985)....

...We find that the scoresheets were not prepared in error. Also the trial judge correctly based appellant's sentence on the primary offense of aggravated assault with a knife while masked, which was accurately reclassified from a third degree to a second degree felony pursuant to Section 775.0845(3), Florida Statutes (1985), and recommended the most severe sentence of five years incarceration....

...ctions for both the robbery and the attempted carjacking are proper. But Wright contends that since he remained unmasked in his vehicle as he sent his minions out to commit masked offenses, his offenses cannot be reclassified under the provisions of section 775.0845, Florida Statutes ("Wearing mask while committing offense; reclassification"). State v. Rodriguez, 602 So.2d 1270 (Fla. 1992), may lend support to his position but additional analysis is required. *577 It appears that the answer to the question should depend on whether section 775.0845 enhances the offense or enhances the penalty....

...Is Wright guilty as an accomplice to the enhanced version of the offense in which he knowingly participated or is he vicariously guilty of a lesser offense than his accomplices because he remained in the vehicle unmasked? The answer is more difficult than the question might suggest. Section 775.0845 is a statute of general application to various felonies and misdemeanors....

...porarily deprive the owner thereof and would constitute the new offense of "robbery with a mask," a felony of the first degree. If during the robbery the offender carried a weapon and used a mask, the newly created offense would be a life felony. If section 775.0845 is instead interpreted as was section 775.087(1) in Rodriguez, then only those actually wearing masks could be convicted of the enhanced offense....

...e if "the defendant" carries a firearm during its commission, only affects the particular defendant carrying the firearm and not his accomplice. Notice, however, that the legislature used the term "defendant" (rather than the term "offender" used in 775.0845) in section 775.087(1) which is more similar to the term "person ......

...Section 812.13(2)(c), Florida Statutes, classifies a robbery, which without the presence of a weapon (or firearm) would be a felony of the second degree, as a felony of the first degree "[i]f in the course of committing the robbery the offender carried a weapon." (Emphasis added). This language is similar to that used in section 775.0845 which reclassifies the offense to the next higher degree "if, while committing the offense, the offender was wearing a ......

...ng in which masks were worn. If by wearing the masks, the two actual perpetrators committed a distinct, substantive offense of the first degree, then it appears that section 777.011 would make their absent accomplice guilty of the same. If, however, section 775.0845 is considered to be only a sentencing enhancer, then Rodriguez compels us to limit the driver's conviction to robbery and attempted carjacking and to limit his sentence accordingly. Since it appears to us that the legislature accepted the supreme court's implicit invitation to amend section 775.0845 in order to make the use of a mask during the commission of an offense "a distinct, substantive offense" and since the legislature used the terminology it employed in creating the distinct, substantive offense of armed robbery, we be...

...Because we acknowledge that we may be misinterpreting the breadth of Rodriguez, we certify the following question to the supreme court: IS THE ACCOMPLICE TO MASKED OFFENSES GUILTY OF THE ENHANCED OFFENSES? AFFIRMED. W. SHARP, J., and ORFINGER, M., Senior Judge, concur. NOTES [1] The earlier version of section 775.0845 was clearly a sentence enhancer....

..." This was pointed out in Cabal v. State, 678 So.2d 315 (Fla. 1996), in which the supreme court implicitly invited the legislature to amend the statute in order to reclassify "the conduct as a distinct, substantive offense." The legislature did so in 1997. See section 775.0845, Fla....

...theft in the same manner that prior convictions are used to enhance the maximum statutory punishment under the habitual offender statute [6] (section *298 775.084, Florida Statutes); the wearing of a mask is used to enhance criminal penalties under section 775.0845, Florida Statutes; the use of a weapon or firearm is used to enhance criminal penalties under section 775.087(1), Florida Statutes; assaults and batteries upon an officer or firefighter are used to enhance criminal penalties under se...

...recognized in Sigler does not apply here because the jury found that Tribbitt committed attempted robbery with respect to count I. We also observe that because the jury found that Tribbitt wore a mask during the commission of the attempted robbery, section 775.0845, Florida Statutes (2005), requires the trial court to reclassify his offense to the next higher degree of the offense for scoring purposes. See Sumpter v. State, 838 So.2d 624, 625 (Fla. 4th DCA 2003) (noting that section 775.0845 "requires a scoresheet classification to be moved up one level if a defendant is convicted of wearing a mask during the commission of a crime").

...Appellee's objection to application of that provision was overruled. The court enhanced the offense from a third-degree to a second-degree felony and sentenced appellant to five years' imprisonment. Appellee argues that enhancement under Section 782.071(2) is comparable to that of Section 775.0845 (wearing a mask while committing an offense) and Section 775.0846 (wearing bulletproof vest while committing an offense). However, the two cases we find under Section 775.0845, although *815 affirming enhancement, are not supportive of appellee's position....

...l 6 offense rather than a level 7 offense), is without merit. Although the information referred to the wrong statute, the body of the information alleged that McDonald committed the robbery while wearing a mask. This offense occurred on May 8, 1996. Section 775.0845, Florida Statutes (1995), was amended effective October 1, 1995, to clarify that "for the purposes of sentencing under chapter 921 ......

...a felony offense which is reclassified under this subsection is ranked one level above the ranking under s. 921.0012 or s. 921.0013 of the offense committed." The decision in Cabal v. State, 678 So.2d 315 (Fla.1996), which held that the prior version of section 775.0845 acted to enhance a sentence rather than to reclassify the degree of offense, did not address whether the 1995 amendment acted to require reclassification. See Cabal, 678 So.2d at 317 n. 3. In 1997, the legislature further amended section 775.0845 in response to the dicta in Cabal, to clarify that its intent was not to enhance a penalty but to reclassify an offense *644 to the next higher degree. See ch. 97-39, Laws of Fla. As section 775.0845 acted to reclassify McDonald's robbery conviction from a second degree felony to a first degree felony, the trial court properly scored 56 points for this offense....

...Wright was convicted of both robbery with a mask and attempted carjacking with a mask. On appeal, the district court affirmed Wright's convictions and certified the question above. See id. Wright contends that since he remained unmasked in his vehicle, his offenses cannot be reclassified under the provisions of section 775.0845, Florida Statutes (1997) ("Wearing mask while committing offense; reclassification"). Section 775.0845 provides: The felony or misdemeanor degree of any criminal offense, other than a violation of ss....

...876.12-876.15, shall be reclassified to the next higher degree as provided in this section if, while committing the offense, the offender was wearing a hood, mask, or other device that concealed his or her identity. We hold that a defendant's sentence cannot be enhanced under section 775.0845 without evidence establishing that the defendant personally wore a hood, mask, or other device that concealed his or her identity....

...WELLS, C.J., dissents with an opinion, in which QUINCE, J., concurs. PARIENTE, J., concurring in part and dissenting in part. Although I agree with the majority's decision that an accomplice to masked offenses is not guilty of the enhanced offenses under section 775.0845, Florida Statutes (1997), see majority op....

...ut the presence of a weapon (or firearm) would be a felony of the second degree, as a felony of the first degree "[i]f in the course of committing the robbery the offender carried a weapon." (Emphasis added). This language is similar to that used in section 775.0845 which reclassifies the offense to the next higher degree "if, while committing the offense, the offender was wearing a ......

...ng in which masks were worn. If by wearing the masks, the two actual perpetrators committed a distinct, substantive offense of the first degree, then it appears that section 777.011 would make their absent accomplice guilty of the same. If, however, section 775.0845 is considered to be only a sentencing enhancer, then [ State v....

...Rodriguez, 602 So.2d 1270 (Fla.1992)], compels us to limit the driver's conviction to robbery and attempted carjacking and to limit his sentence accordingly. Since it appears to us that the legislature accepted the supreme court's implicit invitation to amend section 775.0845 in order to make the use of a mask during the commission of an offense "a distinct, substantive offense" and since the legislature used the terminology it employed in creating the distinct, substantive offense of armed robbery, we be...

...ed the victim and attempted to carjack his vehicle while wearing masks, they established the offense for which Wright is vicariously guilty. The majority also failed to respond to the district court's footnote 1, which states: The earlier version of section 775.0845 was clearly a sentence enhancer....

...pointed out in Cabal v. State, 678 So.2d 315 (Fla.1996), in which the supreme court implicitly invited the legislature to amend the statute in order to reclassify "the conduct as a distinct, substantive offense." The legislature did so in 1997. See section 775.0845, Fla. Stat. (1997). In view of this decision, I assume the Legislature will have to again amend section 775.0845, Florida Statutes, and state expressly that section 777.011, Florida Statutes, applies to section 775.0845....

...The primary offense was incorrectly scored. Appellant was convicted of robbery while wearing a mask under section 812.13(2)(c), Florida Statutes (2001). The offense level for this type of robbery is six. See § 921.0022(3)(f), Fla. Stat. (2001). Applying section 775.0845, Florida Statutes (2001), the robbery is "reclassified" and "ranked one level above the ranking under......

...4th DCA 1997) and Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993). Both cases stand for the proposition that robbery committed while using a mask may not be reclassified as a first-degree felony. However, both cases were decided prior to the amendment of section 775.0845. In 1995, section 775.0845, Florida *625 Statutes (1995) was amended to clarify that "[f]or the purposes of sentencing under chapter 921 ... a felony offense that is reclassified under this subsection is ranked one level above the ranking under ... s. 921.0022 of the offense committed." (Emphasis added). The prior version of section 775.0845 applied in Finch and Spicer, required that a penalty be increased rather than reclassified when committed while using a mask....

...State, 623 So.2d 823 (Fla. 2d DCA 1993), the use of the term "hate-crime," with reference to this statute, is a misnomer. The statute provides for penalty enhancement, not offense enhancement. See also Cabal v. State, 678 So.2d 315 (Fla.1996) (construing section 775.0845, providing for enhanced penalties for wearing a mask while committing offense, as penalty enhancing, not reclassification of offense)....

...Admittedly, in some instances such a distinction may be without a difference in its practical effect, but the legislature has chosen to make a distinction. Enhancement is commonly associated with the province of the judge in sentencing, as in the case of habitual offenders, section 775.084, and the wearing of a mask, section 775.0845....

...(D) A felony of the first degree punishable by life within offense level 9. (E) A life felony within offense level 10. An offense does not become unlisted and subject to the provisions of section 921.0023 because of a reclassification of the degree of felony pursuant to section 775.0845, section 775.087, section 775.0875 or section 794.023, Florida Statutes, or any other law that provides an enhanced penalty for a felony offense....

...severity levels 3, 4, 5, 6, 7, 8, 9, and 10 must be scored as felonies one offense level beneath the incomplete or inchoate offense. (11) An increase in offense severity level may result from a reclassification of felony degrees pursuant to sections 775.0845, 775.087, 775.0875, or....

...ithin offense level 9.; or (E) Aa life felony within offense level 10. An offense does not become unlisted and subject to the provisions of section 921.0023 because of a reclassification of the degree of felony under section 775.0845, section 775.087, section 775.0875, or section 794.023, Florida Statutes, or any other law that provides an enhanced penalty for a felony offense. (d) General Rules and Definitions. (1) One or more Criminal Pu...

...levels 3, 4, 5, 6, 7, 8, 9, and 10 must be scored as felonies one1 offense level beneath the incomplete or inchoate offense. (11) An increase in offense severity level may result from a reclassification of felony degrees under sections 775.0845, 775.087, 775.0875, or 794.023, Florida Statutes....

...Newman contends the trial court erred by treating his offenses as first degree felonies. He argues that the multiple perpetrator statute provides not for reclassification of crimes, but for enhanced punishments. His argument has merit in light of the judicial interpretation and recent history of a similar statute. Section 775.0845, Florida Statutes (1993), was entitled "Wearing mask while committing offense; enhanced penalties." Its initial paragraph stated that "[t]he penalty for any criminal offense ......

...nce at its end: "For purposes of sentencing under chapter 921..., a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0012, s. 921.0013, s. 921.0022 or s. 921.0023 of the offense committed." § 775.0845, Fla....

...We note, however, that the definitive, substantive language of the statute has not been altered. Cabal, 678 So.2d at 317, n. 3. At its next regular session following release of the Cabal decision, the legislature amended the masked perpetrator statute again. As a result, section 775.0845, Florida Statutes (1997), is now entitled "Wearing mask while committing offense; reclassification." (Emphasis supplied.) Its opening paragraph provides that an offense committed by a masked perpetrator "shall be reclassified to the...

...tes in October 1995, which speaks to reclassification. The State also points out that Florida Rule of Criminal Procedure 3.703(d)(11) states that an "increase in offense severity level may result from a reclassification of felony degrees pursuant to 775.0845, 775.087, 775.0875, or 794.023 [,]" and that rule 3.703(c)(2) provides that "[a]n offense does not become unlisted and subject to the provisions of section 921.0013, because of a reclassification of the degree of felony pursuant to section 775.0845, section 775.087, section 775.0875 or section 794.023." (Emphases supplied.) We note that language corresponding to the latter rule provision has been included in section 921.0022(2), Florida Statutes (Supp.1998)....

...4th DCA 2010) (“Because the standard of review that applies to motions for judgment of dismissal in a juvenile case is the same standard that applies to motions for judgment of acquittal in an adult criminal case, the juvenile court’s ruling is reviewed de novo.”). 3. Our Analysis We agree with the state’s argument. Section 775.0845, Florida Statutes (2015), provides in pertinent part: The felony or misdemeanor degree of any criminal offense ......

...yond a reasonable doubt that [he] [she] personally wore a hood, mask, or other device that concealed [his] [her] identity, then you should find the defendant guilty only of (crime charged). Fla. Std. Jury Instr, (Crim) 3.3(e). As seen above, neither section 775.0845 nor Standard Juxy Instruction 3.3(e) contain any requirement that a person conceal their identity throughout the entire criminal episode, or for any specific length of time, to prove that the person intended to conceal their identity....

...enile used his shirt to conceal his identity. As the trial court observed, even if the juvenile’s use of his shirt to conceal his identity was for only “a brief amount of time,” such *391 use of his shirt to conceal his identity still violated section 775.0845....

...The fact that a “witness” is not present to view the person wearing the hood, mask, or other device is irrelevant. The point is that the person is wearing the hood, mask, or other device to conceal their identity. See Fletcher v. State, 472 So.2d 537, 540 (Fla. 5th DCA 1985) (section 775.0845 “is aimed at criminals who employ devices either to make witnesses’ identifications of them difficult or to otherwise facilitate the commission of a crime....

...der classification was not applicable to defendants who were to be sentenced for crimes punishable as life felonies. See § 775.084(4)(b)(1), Fla. Stat. (1993). Coney's reliance on that statute is misplaced. At the time Coney committed his offenses, section 775.0845, Florida Statutes (1993), authorized enhanced penalties for offenders who were masked while committing an offense. The statute did not reclassify felonies based on the use of a mask. By contrast, the current version of section 775.0845 is a felony reclassification statute. See § 775.0845, Fla. Stat, (2002). Nevertheless, under either version of 775.0845, the highest felony subject to reclassification or enhanced penalties for the use of a mask is a second degree felony. Coney's offense, a first degree felony punishable by life, does not implicate section 775.0845....

...On this appeal, the defendant maintains that the court erred in reclassifying his conviction for aggravated battery with a deadly weapon while wearing a mask (Count II) from a second degree felony to a first degree felony and then imposing a life sentence as a violent habitual offender. §§ 775.084, 775.0845, 784.045(1)(a)2, (2), (1993). As authority, the defendant cites Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993). In Spicer, the court held that section 775.0845(4), Florida Statutes (1989) was an enhanced penalty statute and did not operate to reclassify the degree of felony....

...statutory authority. Cf. Spicer v. State, 615 So. 2d 725, 726 (Fla. 2d DCA 1993) (reversing reclassification of robbery with a mask conviction because "[p]enal statutes must be construed in terms of their literal meaning . . . . [I]f the legislature had intended section 775.0845 [Florida Statutes (1989)] to reclassify offenses, it would have so stated ....

...(2014) (expressly authorizing reclassification of an assault or battery to a higher degree based on the victim's status as a law enforcement officer, firefighter, emergency medical care provider, public transit employee or agent, or other specified officer), and § 775.0845, Fla....

...5th DCA 1988). The defendant also argues that the judgment erroneously reflects that he was convicted of a first degree felony rather than a second degree felony. The defendant was charged with robbery while wearing a mask in violation of sections 812.13 and 775.0845, Florida Statutes (1985). Under section 775.0845(4), a felony of the second degree is punishable as if it were a felony of the first degree if the offender was wearing a mask that concealed his identity while committing the offense....

...The judgment form, however, lists the mask statute and the degree of the crime as a first degree felony. Since the defendant pleaded to a second degree robbery, the judgment form should be corrected to reflect the proper degree of the offense and the reference to section 775.0845 (erroneously designated as 777.0845 on the judgment form) should be deleted....

...(D) A felony of the first degree punishable by life within offense level 9. (E)A life felony within offense level 10. An offense does not become unlisted and subject to the provisions of section 921.0023 because of a reclassification of the degree of felony pursuaet-tounder section 775.0845, section 775.087, section 775.0875 or section 794.023, Florida Statutes, or any other law that provides an enhanced penalty for a felony offense....

...evels 3, 4, 5, 6, 7, 8, 9, and 10 must be scored as felonies one offense level beneath the incomplete or inchoate offense. *829 (11) An increase in offense severity level may result from a reclassification of felony degrees pursuant founder sections 775.0845, 775.087, 775.0875, or 794.023....

first-degree felony. Appellant argued that section 775.0845, Florida Statutes (1995), provided for enhancement

...ears as an habitual violent offender. § 775.084(4)(b)(3), Fla.Stat. (1997). We also note that the enhanced penalty statute for wearing a mask was not changed to increase the degree of the felony until *1121 1997, after Drumwright was sentenced. See § 775.0845 Fla.Stat....

...In 1990, the State charged Adams, by information, with burglary pursuant to section 810.02(3) and robbery pursuant to section 812.13(1) and (2)(e), Florida Statutes (1989), both second-degree felonies. The information alleged that during the commission of each offense, Adams wore a mask, in violation of section 775.0845, Florida Statutes (1989)....

...1 Adams pleaded guilty to these offenses as charged in Circuit Court Case No. 90-6148. On the written judgment, the offenses were listed as burglary of a dwelling with a mask and robbery with a mask and were classified as first-degree felonies, presumably pursuant to section 775.0845(4)....

...violent felony offender based upon his prior aggravated battery conviction. The trial court granted relief on ground one based on Solone v. State, 686 So.2d 719 (Fla. 2d DCA 1997), and reduced Adams’ sentences to thirty years. Solone explains that section 775.0845(4) provides only for an enhancement of the sentence to be imposed when a mask is used in the commission of certain offenses, and may not be used to reclassify a second-degree felony to a first-degree felony for the purpose of habitual offender sentencing....

...At the time the trial court resentenced Adams, an amended sentence was entered but no amended judgment was entered. As we have previously explained, it was error for the trial court to reclassify the offenses from second-degree *387 felonies to first-degree felonies because section 775.0845(4) provides for an enhanced sentence, not a reclassification of the level of offense....

...signation. Adams need not be present. Reversed and remanded with directions. PARKER, A.C.J., and WHATLEY, J., Concur. . As noted in Solone v. State, 686 So.2d 719 , 720 n. 1 (Fla. 2d DCA 1997) and Cabal v. State, 678 So.2d 315 , 317 n. 3 (Fla.1996), section 775.0845 has been amended....

...irect appeal. Appellant alleges that he was convicted of robbery pursuant to section 812.13(2)(c), a second-degree felony punishable by up to 15 years in prison. This second-degree felony was punishable as if it was a first-degree felony pursuant to section 775.0845, Florida Statutes (the mask statute), because appellant was found to have worn a mask during the robbery....

...er classification for committing a second-degree felony was 30 years. § 775.084(4)(a), Fla.Stat. According to appellant’s allegations, therefore, the maximum statutory sentence he possibly could receive pursuant to either section 775.084(4)(a) or section 775.0845, Florida Statutes, was 30 years....

...d or mask, 3 and Count III, unlawful display, use, and carrying a firearm (a shotgun) while committing a felony (armed robbery) while wearing a hood or mask. 4 Wearing a hood or mask while committing an offense enhances the degree of felony charged. § 775.0845, Fla....

...be used at his resentencing. Appellant’s second degree strong arm robbery conviction was erroneously scored as a first degree felony (level seven offense — 42 points), rather than as a second degree felony (level six — 36 points). Pursuant to section 775.0845, Florida Statutes (1993), the maximum penalty for the crime of committing a robbery while wearing a mask may be enhanced to that of a first degree felony, but the offense may not be reclassified as such....

...ritten reasons for the departure so as to accomplish his original sentencing goals for appellant. See State v. Betancourt, 552 So.2d 1107 (Fla. 1989). Affirmed in part, reversed in part and remanded. 2 GLICKSTEIN, KLEIN and STEVENSON, JJ., concur. . Section 775.0845 was amended in 1995 and may now require reclassification, although in the *1068 Cabal decision the supreme court expressly declined to consider whether the amended statute requires reclassification because there, as here, the earlier version of the statute applied....

...(Emphasis added.)3 As we explained in Pethtel, a 3 We note that the legislature has enacted numerous reclassification statutes: section 784.07 reclassification of assault or battery to the next higher degree if the victim was a law enforcement officer; section 775.0845 reclassification of almost any offense to the next higher degree where the defendant wore a mask; section 775.085 reclassification of any crime to the next higher degree where the crime was based on prejudice against the victim for r...

...The taking of money from a victim by “force, violence, assault, or putting in fear” is an inherent element of the crime of robbery. Roseman v. State, 519 So.2d 1129, 1130 (Fla. 5th DCA 1988). The use of a mask during the robberies, the seventh reason, might be valid, but it is not in the instant case. Section 775.0845, Florida Statutes, provides for enhanced punishment when crimes are committed while using a mask....

ORFINGER, R.B., J. Curtis Bartley appeals his conviction for armed robbery with a firearm or deadly weapon while wearing a mask in violation of sections 812.13(1) and (2)(a), Florida Statutes (2000) and section 775.0845, Florida Statutes (2000)....

...evidence showed that while an accomplice wore a mask during the commission of the robbery, he did not. The State agreed that Bartley wore no mask, but argued that even if he did not wear a mask, Bartley could receive an enhanced sentence pursuant to section 775.0845 if an accomplice wore a mask during the commission of the robbery....

...5th DCA 2000) wherein we held that a defendant could be convicted of robbery with a mask when the defendant remained unmasked during a robbery, but his accomplice was .masked. Subsequent to Bartley’s trial, the supreme court reversed our decision, and held that “a defendant’s sentence cannot be enhanced under section 775.0845 without evidence establishing that the defendant personally wore a hood, mask, or other device that concealed his or her identity.” Wright v....

...State, 810 So.2d 873, 874 (Fla.2002). The State concedes that Bartley did not wear a mask during the robbery. Therefore, Bartley should have been convicted only of armed robbery with a firearm or other deadly weapon without the sentencing enhancement authorized by section 775.0845 for those perpetrators who are masked during their crime....

...Armed robbery with a firearm or other deadly weapon is a first-degree felony punishable by a term of years not exceeding life imprisonment. § 812.13(1) & (2)(a), Fla. Stat. (2000). Accordingly, while the information and the sentencing documents erroneously reference the use of a mask *1066 pursuant to section 775.0845, in this case, that sentencing enhancement had no effect on Bartley’s potential sentence, as Bartley could have received a life sentence without the use of the mask enhancer. 1 Accordingly, we find the error harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We affirm Bartley’s conviction and remand this matter to allow the trial court to delete the reference to a mask and section 775.0845, Florida Statutes (2000) in the sentencing documents....

...ef, the defendant contends among other things that the trial court erred by reclassifying to a first-degree felony his conviction for robbery with a hood or mask, a second-degree felony. The record reflects that in doing so the trial court relied on section 775.0845, Florida Statutes (1993), which imposes an enhanced penalty for wearing a mask while committing a felony. However, as the supreme court concluded in Cabal v. State, 678 So.2d 315, 317 (Fla.1996): “We find that the plain language of section 775.0845, which is entitled ‘Wearing mask while committing offense; enhanced penalties ’ (emphasis added), requires that the penalty be increased rather than the offense reclassified.” See also Woods v....

...775.087(1), Florida Statutes, which deals with enhancing a crime when a weapon is possessed, requires that the defendant be the actual person to possess the weapon. Rodriguez, 602 So. 2d at 1271. In Wright v. State, 810 So. 2d 873 (Fla. 2002), the court held the same with regard to section 775.0845, which enhances crimes when a mask is worn....

...ithin offense level 9.; or (E) Aa life felony within offense level 10. An offense does not become unlisted and subject to the provisions of section 921.0023 because of a reclassification of the degree of felony under section 775.0845, section 775.087, section 775.0875, or section 794.023, Florida Statutes, or any other law that provides an enhanced penalty for a felony offense. (d) General Rules and Definitions. (1) One or more Criminal Pu...

...levels 3, 4, 5, 6, 7, 8, 9, and 10 must be scored as felonies one1 offense level beneath the incomplete or inchoate offense. (11) An increase in offense severity level may result from a reclassification of felony degrees under sections 775.0845, 775.087, 775.0875, or 794.023, Florida Statutes....

...The state concedes that the sentencing was in violation of Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993), and that the cause should be remanded for resentencing on those counts. Under Spicer , upon resentenc-ing the court may either sentence the defendant pursuant to the enhanced penalty provisions of section 775.0845, Florida Statutes (1993), and the sentencing guidelines or sentence the defendant as a habitual offender, but the court may not do both....

...No appearance required for appellee. PER CURIAM. Appellant was convicted in 2003 of robbery while wearing a mask. He asserts under rule 3.800(a) that his sentence is illegal because it was enhanced twice, once *848 because the jury found he wore a mask, section 775.0845, Florida Statutes (1999), and again as an habitual felony offender. Appellant's argument that section 775.0845 is an enhancement, and not a reclassification of his crime, is without merit....

...5th DCA 2006) (no double jeopardy where habitual felony offender enhancement was applied to an offense which was reclassified due to the use of a weapon under section 775.087(1)). Cabal v. State, 678 So.2d 315 (Fla.1996), which appellant cites, has been superseded by the 1997 amendment to section 775.0845, which clarified the legislative intent to reclassify....

...rs’ imprisonment under section 775.082(3)(c), Florida Statutes (1991). The information further alleged that during the commission of each robbery the appellant wore a “hood, or mask, or other device that concealed his identity” in violation of section 775.0845, Florida Statutes (1991)....

...The appellant did not file a direct appeal and subsequent collateral attacks on his judgment and sentences proved unfruitful. The appellant’s latest attempt to gain relief from what he contends are illegal sentences is straightforward. He alleges that the trial court erred in using section 775.0845(4) to reclassify his robbery offenses from felonies of the second degree to felonies of the first degree and then sentencing him as a habitual violent felony offender as if he had committed first-degree felonies....

...cond-degree felony, see section 775.084(4)(b)2., Florida Statutes (1991), those sentences are illegal. We agree. In Spicer v. State, 615 So.2d 725 (Fla. 2d DCA 1993), approved, Cabal v. State, 678 So.2d 315 (Fla.1996), we construed the provisions of section 775.0845(4) and held that this statute could not be used to reclassify unarmed robbery from a second-degree felony to a first-degree felony for purposes of habitual felony offender sentencing....

...Accordingly, based on the indistinguishable holding in Spicer , we vacate appellant’s sentences and remand for resentencing in conformity with that decision. 2 Affirmed in part, reversed in part, and remanded for resentencing. DANAHY, A.C.J., and PARKER, J., concur. . As noted in Cabal, section 775.0845 has since been amended....

...l on the “hood or mask” enhancement, because the evidence showed that the defendant’s shirt was pulled over only the back of his head, and did not cover his face. We disagree with the defendant’s argument, because under the plain language of section 775.0845, Florida Statutes (2016), it is not necessary that the hood, mask, or other device cover an offender’s face. Instead, under the statute, the factfinder simply considers “if, while committing the offense, the offender was wearing...

...If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. Id. at 803 (internal citations omitted). Section 775.0845, Florida Statutes (2016), states, in pertinent part: The felony or misdemeanor degree of any criminal offense ....

...5th DCA 1985) (emphasis added). The statute does not require that the offender be successful in his or her attempt to avoid identification through use of a mask, hood, or device. See generally L.D.H. v. State, 212 So. 3d 387, 390-91 (Fla. 4th DCA 2017) (juvenile violated section 775.0845 even though juvenile used his shirt to cover his face for only a brief amount of time)....

...As the trial court observed, a person like the victim who knew him well could readily recognize him on a video. So the defendant, in order to conceal his identity from the victim, used his shirt to cover the back of his head. Such action constitutes competent, substantial evidence that the defendant violated section 775.0845. Conclusion As we noted in L.D.H., “With the growing use of home security video technology as a crime prevention measure, it is not unreasonable to conclude that a person intending to burglar...

...Armed robbery with a weapon is a lesser-included offense of armed robbery while carrying a firearm. Growden, 372 So. 2d at 931. Therefore, the attempt to commit armed 1 The State also charged Grant with wearing a mask, which constitutes an enhancement to the charges. See § 775.0845, Fla....

reclassification of the degree of felony pursuant to section 775.0845, section 775.087, section 775.0875 or section

...The defendant argues that by amending the information on the day of trial to add an allegation that he wore a mask while committing the offense, the state charged him with a reclassified offense which subjected him to increased penalties pursuant to section 775.0845, Florida Statutes (1997)....

...1st DCA 1979), and Lawson v. State, 251 So.2d 683 (Fla. 3d DCA 1971). In addressing this issue, we begin by noting that the defendant was charged with armed robbery, a first degree felony punishable by a maximum of life imprisonment. See § 812.13(2)(a), Fla. Stat. (1997). Section 775.0845 reads, in pertinent parts, as follows: The felony or misdemeanor degree of any criminal offense, other than a violation of §§ 876.12 — 876.15, shall be reclassified to the next higher degree as provided in this section if, while...

...*1034 (b) In the case of a felony of the second degree, the offense is reclassified to a felony of the first degree. (Emphasis added). As is apparent, the statute does not reclassify first degree felonies or first degree felonies punishable by life imprisonment. Because the charge of armed robbery is not reclassified by section 775.0845, the defendant’s argument is completely unfounded....

...Cooper’s habitual sentence was not imposed based upon an aggravated stalking conviction. Cooper next alleges that his sentences are illegal because the trial court enhanced the convictions from second-degree felonies to first-degree felonies under section 775.0845, Florida Statutes (1995), and then again enhanced them to life felonies under the habitual offender statute....

...The trial court did not address this claim as to the conviction for felon in possession of a firearm which is, as Cooper alleges, a second-degree felony. See § 790.23, Fla. Stat. (1995). According to the attached judgment, however, this conviction was not enhanced pursuant to section 775.0845....

...(1995) (providing that kidnapping is a first-degree felony punishable by life). . Because it is not properly before us, we do not address whether the conviction for felon in possession of a firearm can be reclassified to a first-degree felony pursuant to section 775.0845, Florida Statutes (1995), and then be subjected to the habitual sentence for a first-degree felony. We note, however, that the cases relied upon by Cooper interpreted a prior version of the statute and do not control here. See Solone v. State, 686 So.2d 719 , 720 n. 1 (Fla. 2d DCA 1997) (noting that the amended version of section 775.0845 is not an issue in that appeal); Adams v....

wore a mask during the robbery. See generally section 775.0845, Florida Statutes (1993). We find that to