IRIS DENISE WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Iris Walker appeals her convictions for resisting an officer with violence and battery on a law enforcement officer arising from a disturbance at a shoe store. The court reversed the battery conviction, holding that because battery was incidental to and included within the resisting charge, Walker could not be convicted of both offenses for the same criminal conduct.
Walker cannot be convicted of both crimes. The court reversed the battery conviction while affirming the resisting conviction because the battery was incidental to and included in the resisting charge, making them part of the same criminal conduct. Although neither crime is technically a lesser included offense under traditional definitions, the battery conviction must be reversed to avoid punishing the same conduct twice.
[1] A conviction for battery on a law enforcement officer may be reversed when the battery was incidental to and included in the offense of resisting an officer with violence…
[2] When a battery is a necessary component of the proof for resisting an officer with violence, the battery conviction may be reversed as a lesser included offense.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In order for the appellant to have committed the crime of 'resisting with violence,' it was necessary for her to have committed a battery in this case. Thus, it was all a part of the same conduct.”
Establishes that battery was included within and incidental to the resisting charge, making them part of the same criminal transaction
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePolice were called to a shoe store where Walker was creating a disturbance. When arrested for breach of the peace, Walker jerked away from the officer…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAUKSCH, Chief Judge.
This is an appeal from a conviction of two charges: resisting an officer with violence to his person and battery on a law enforcement officer. The officer was called to a shoe store where appellant was creating a disturbance. When the policeman arrested appellant for breach of the peace, she jerked away from him. They both fell to the ground and in the ensuing melee, appel lant bit, kicked and scratched the officer before she was finally subdued.
Appellant urges she should not be convicted of both crimes because one is factually included in the other and each is a facet or phase of the same criminal transaction. As authority for reversal, she cites Jane v. State, 362 So. 2d 1005 (Fla. 4th DCA 1978), which held under the facts of that case that battery and false imprisonment were part of the same transaction and thus Jane could not be convicted of both. In that case, the appellant embraced the victim in a bear hug and would not let her go. Because of that, he was charged with battery for hugging her and false imprisonment for not letting her go. Here, appellant is charged with resisting an officer with violence to his person and battery upon the same law enforcement officer for jerking away from him, hitting, biting, kicking and scratching him. In order for the appellant to have committed the crime of “resisting with violence,” it was necessary for her to have committed a battery in this case.
Thus, it was all a part of the same conduct. This is not to say in all cases a battery must occur before resisting with violence charge is warranted because the resisting statute proscribes not only the doing of violence but the offer to do violence. Sec. 843.01, Fla. Stat. (1979).
However, in this case the proof is clear that appellant was not inclined to make any offers to do violence; she just attacked. As in Jane, it was not necessary for the crime of false imprisonment to include a battery, but it did, and that court reversed the battery conviction, because it was a lesser included offense under Brown v. State, 206 So. 2d 377 (Fla. 1968), category 4. Here, neither crime is “lesser” because both are third degree felonies but since the battery was incidental to, and included in the resisting the officer charge, we affirm the resisting conviction and reverse the battery conviction. The converse would apply, of course, but some choice must be made.
The judgment of conviction of battery on a law enforcement officer is reversed and this case in remanded to the trial court for sentencing.
REVERSED AND REMANDED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur.
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Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)…1008 (Fla.1979); State v. Munford, 357 So. 2d 706 (Fla.1978); Portee v. State, 392 So. 2d 314 (Fla. 2d DCA 1980). . See, e.g., Stone v. State, 402 So. 2d 1222 (Fla. 5th DCA 1981); James v. State, 399 So. 2d 424 (Fla. 5th DCA 1981); Walker v. State, 386 So. 2d 630 (Fla. 5th DCA 1980). It is not the commonality of some elements that makes two offenses “the same offense” for double jeopardy but the absence of at least one different element. The focus on common elements is just ariother erroneous way of thinking…1 / 3
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Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…ate, 438 So. 2d 864 (Fla. 1st DCA 1983); Anderson v. State, Nos. AO-281 and AO-282 (Fla. 1st DCA July 18, 1983) [1983 FLW 1888]; Parks v. State, 437 So. 2d 790 (Fla. 2d DCA 1983); Boivin v. State, 436 So. 2d 1074 (Fla. 3d DCA 1983); Walker v. State, 386 So. 2d 630 (Fla. 5th DCA 1980). The analysis and comparison of the essential constituent elements of criminal offenses, which is the true Blockburger test, is the view in State v. Cantrell, 417 So. 2d 260 (Fla.1982); Borges v. State, 415 So. 2d 1265 (Fla.1982…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Jane v. State, 362 So. 2d 1005 (Fla. 4th DCA 1978)