MICKEY SAUNDERS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Mickey Saunders was convicted of burglary of a structure and battery. The Florida District Court of Appeal affirmed his convictions but modified his sentence on the battery count, reducing it from four years to one year because the original sentence exceeded the statutory maximum for a first-degree misdemeanor.
The jury instruction on assault, while imposing a greater burden on the state than the legal definition, was not inappropriate given the wording of the information and was not fundamental error. However, the sentence for battery exceeded the lawful maximum under Florida law, as battery is a first-degree misdemeanor with a maximum punishment of one year imprisonment, not the four years imposed.
[1] A trial court's jury instructions are reviewed for fundamental error.
[2] A trial court may provide a jury with a dictionary definition of a term when the jury requests clarification, even if that definition imposes a greater burden on the stat…
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Join FLexlaw to unlock all legal intelligence“Because we discern no fundamental error in the trial court's instructions to the jury, we affirm defendant Saunders' convictions for burglary of a structure and battery.”
Establishes that the court found the jury instructions on assault were not fundamental error warranting reversal of convictions.
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Join FLexlaw to unlock all legal intelligenceDuring a burglary of a structure, Saunders assaulted Neil Christiansen by striking him about the head and body. At trial, the court initially gave no …
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BASKIN, Judge.
Because we discern no fundamental error in the trial court’s instructions to the jury, we affirm defendant Saunders’ convictions for burglary of a structure and battery. The information alleged that during the burglary Saunders assaulted Neil Chris-tiansen by “striking him about the head and body.” Initially, and without objection by defense counsel, the court gave no instruction on the element of assault, but subsequently, in response to a request by the jury, the court defined assault in dictionary terms.1 In so doing, the court imposed a greater burden upon the state than that encompassed in the legal definition 2 of assault, but in view of the wording of the information, the court’s instruction was not inappropriate.
We find error in the court’s sentence for battery imposed in Count II. According to section 784.08(2), Florida Statutes (1979), battery is a misdemeanor of the first degree. The punishment for a misdemeanor of the first degree is a term of imprisonment not exceeding one year. § 775.-082(4Xa), Fla.Stat. (1979). The sentence of four years imprisonment followed by two years in a community control program with a mandatory minimum of one year imprisonment, imposed in accordance with the youthful offender statute, section 958.05, Florida Statutes (1979), exceeds the lawful maximum for the crime of battery. Rejecting as without merit the state’s argument that because defendant “reaped the benefit” of a lawful sentence in Count I, he should not be allowed to complain about an unlawful sentence in Count II, we reduce the sentence for Count II to one year imprisonment concurrent with Count I and vacate the mandatory minimum imposed in Count II.
Affirmed as modified.
. The court defined assault as “a violent onset or attack or onslaught literally as by means of blows, weapons, et cetera.”
. An assault is an intentional unlawful threat by word or act to do violence to the person of another coupled with an apparent ability to do so and doing some act which creates a well-founded fear in such other person that such violence is imminent.
Fla.Std.Jury Instr. (Crim.) 2.06 (in effect at the time of the trial). This definition tracks the language of section 784.011, Florida Statutes (1979).
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Livingston Milbry v. State, 469 So. 2d 137 (Fla. 3d DCA 1984)…court is committed to the principle that the Youthful Offender Act [ch. 958, Fla.Stat. (1983) ] may not be invoked to impose a sentence which exceeds the statutory maximum set for the offense for which an accused stands convicted. Saunders v. State, 405 So. 2d 1037 (Fla. 3d DCA 1981); contra Dunlap v. State, 433 So. 2d 631 (Fla. 1st DCA 1983). The Act was obviously designed to impose more lenient sanctions on a youthful offender who meets the statutory requirements, not to aggravate the sanctions which would o…