JAMES HART SCOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Convictions for battery on a law enforcement officer are reversed because the charging information failed to allege the essential element of knowledge that the victim was a law enforcement officer.
[1] A charging instrument that omits an essential element of a felony offense is insufficient to charge that felony.
[2] A charging instrument that omits an essential element of a felony offense may be sufficient to charge a lesser included misdemeanor offense.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of battery on a law enforcement officer, resisting an officer with violence, and escape. The charging information for battery …
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BOARDMAN, Judge.
James Hart Scott appeals convictions and sentences for two counts of battery on a law enforcement officer, two counts of resisting an officer with violence, and escape. The only point which merits discussion is his contention that the convictions and sentences for battery on a law enforcement officer are illegal. We agree and reverse in part. The information charged, as to the counts of battery on a law enforcement officer, in violation of Section 784.07(2), Florida Statutes (1977), that appellant
actually and intentionally did touch and strike another person, to-wit: [sic] R. Z. Wyatt, [K. H. Hendrix] against the will of the said R. Z. Wyatt [K. H. Hendrix] and the said R. Z. Wyatt [K. H. Hendrix] then and there was a law enforcement officer engaged in the lawful performance of his duties. .
The essential element of knowledge that the victim was a law enforcement officer was not alleged in either battery count.
Omission of the essential element of knowledge renders both of the subject counts of the information insufficient to charge the felony offense of battery on a law enforcement officer. However, both counts are sufficient to charge the first-degree misdemeanor offense of simple battery, proscribed by Section 784.03, Florida Statutes (1977). Englund v. State, 368 So. 2d 86 (Fla.2d DCA 1979); Radford v. State, 360 So. 2d 1303 (Fla.2d DCA 1978); see also Shanklin v. State, 369 So. 2d 620 (Fla.2d DCA 1979).
Accordingly, the portion of the judgment and sentence pertaining to the battery on a law enforcement officer counts is vacated and the cause remanded with instructions to adjudicate appellant guilty of simple battery as to these counts and enter appropriate sentences thereon, which may not exceed one year on each count. §§ 784.03(2), 775.082(4)(a), Fla.Stat. (1977).
The remaining points raised by appellant have been considered and are without merit. The convictions and sentences for escape and resisting an officer with violence are therefore affirmed.
HOBSON, Acting C. J., and DANAHY, J., concur.
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McEACHERN v. State, 388 So. 2d 244 (Fla. 5th DCA 1980)…e allegations of its information, not the defendant. Chapola went to trial on the allegations in the information and the Court properly charged the jury on the allegations and proof thereof at trial. 347 So. 2d at 763-64. See also, Scott v. State, 379 So. 2d 1021 (Fla. 2d DCA 1980). We understand and appreciate the trial judge’s concern expressed in his sentencing judgment that the citizens of this State will not and should not tolerate stealing of public money by officers and employees who are placed in po…
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D.A.B. v. State, 700 So. 2d 129 (Fla. 1st DCA 1997)…84.081, Florida Statutes (Supp.1996), the adjudication for battery on a school board employee must be reversed. See State v. Gray, 435 So. 2d 816 (Fla.1983). But the petition does sufficiently allege commission of simple battery. See Scott v. State, 379 So. 2d 1021 (Fla. 2d DCA 1980); Danzy v. State, 603 So. 2d 1320 (Fla. 1st DCA 1992). We accordingly reverse the order under review and remand this ease to the trial court for a finding that the appellant committed simple battery and for appropriate disposition.…
Authorities Cited
- Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979)
- Radford v. State, 360 So. 2d 1303 (Fla. 2d DCA 1978)
- Englund v. State, 368 So. 2d 86 (Fla. 2d DCA 1979)