final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Rodney
Smith, Judge. Lower Tribunal No. 10-849-D
J. Martinez, Public Defender, and Robert Kalter, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Linda S. Katz, Assistant
Attorney General, for appellee.
SUAREZ, C.J., and LAGOA and SCALES, JJ.
Castillo ("Castillo") appeals from his conviction
and sentence for second degree murder with a deadly weapon.
On appeal, Castillo raises two arguments. First, Castillo
argues that the trial court erred in overruling defense
counsel's objection to comments made by the State in
closing argument. Second, Castillo argues that the trial
court improperly reclassified his second degree murder
conviction from a felony of the first degree to a life felony
pursuant to section 775.087(1)(a), Florida Statutes (2015).
regard to the first argument, we find that the error was
harmless, and affirm Castillo's conviction for second
degree murder without further discussion. With regard to the
second argument, we agree that the State failed to introduce
any substantive evidence that Castillo had actual possession
of a deadly weapon. We therefore conclude that the
reclassification of Castillo's conviction to a life
felony constitutes fundamental error and remand to the trial
court for resentencing without reclassification under section
FACTUAL AND PROCEDURAL HISTORY
State charged Castillo and his co-defendants by information
with the second degree murder of Luis Rodriguez
("Rodriguez") in violation of section 782.04(2),
Florida Statutes (2015). The information alleged that
Rodriguez was killed by "BEATING AND/OR STRIKING HIM
REPEATEDLY" and that "during the course of
committing said offense, [Castillo] carried, used, or
threatened to use a deadly weapon, to wit: A BAT AND/OR A
STICK AND/OR A ROCK."
trial, the State presented the testimony of several witnesses
who either witnessed or were involved in the attack. Joel
Forcelledo ("Forcelledo") testified that on the
night of January 7, 2010, he was working as a security guard
at a nursing home when he heard screaming in a nearby parking
lot. Forcelledo saw several individuals chasing one male who
was running and fell down. When the victim fell, he was
beaten with a bat but Forcelledo could not identify any of
the attackers. Forcelledo called 911 and then rushed to aid
T.L. testified that on the night
in question she witnessed Rodriguez running from a group of
at least ten boys that were members of the Bout That Life
("BTL") gang. At trial, T.L. identified "Teddy,
" "Baby, " and "Young Money, " but
she did not identify Castillo. T.L. saw "Teddy"
slam Rodriguez to the floor and also saw "Baby"
throw a rock at the victim. She further testified that the
entire group of boys participated in hitting and kicking
Rodriguez. When T.L.'s father screamed that the police
were coming, the group dispersed, and T.L. went to the aid of
State presented the testimony of two other witnesses who
identified Castillo as participating in the attack on
Rodriguez. Specifically, Daniel Salas ("Salas")
testified that on the night of January 7, 2010, he, Castillo,
and others beat Rodriguez, and that during the beating,
Castillo "grabbed [Rodriguez] by the shirt and started
punching him in the face." Salas did not testify that
Castillo used a stick or other weapon.
friend, Mauricio Ordonez ("Ordonez"),
also testified at trial. Ordonez testified that on the night
of January 7, he and Rodriguez were at Riverside Elementary
School when they heard the name of the gang, BTL, being
screamed behind them. A group of people, including Castillo,
began to chase him and Rodriguez, so they ran. At trial,
Ordonez identified "Baby, " "Castillo,
""Teddy, " "Alex, " and
"Young Money" as part of the group that chased him
on the night of January 7. On direct examination, Ordonez
testified that he did not see any part of the beating because
he became separated from Rodriguez while they were running
and he hid in a building. The State then elicited testimony
from Ordonez concerning a prior inconsistent
statement-specifically, that on January 8, 2010, the day
after the beating, Ordonez contacted the police and told them
that he saw Rodriguez "get beat to death." Ordonez
testified that his January 8 statement to the police was not
true, that he had not seen any part of the beating, and that