JEFFREY SHORT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the conviction on one of two aggravated battery counts because the defendant committed only one battery despite being charged under two different statutory subsections, and remanded for the trial court to set aside one conviction.
A defendant who commits a single battery cannot be convicted and sentenced on multiple counts of aggravated battery even if charged under different statutory subsections.
[1] A defendant who commits a single battery cannot be convicted and sentenced on multiple counts of aggravated battery even when charged under different statutory subsection…
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Join FLexlaw to unlock all legal intelligenceJeffrey Short was convicted of two counts of aggravated battery, burglary of a conveyance, and grand theft. The trial court sentenced him on both aggr…
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SCHOONOVER, Judge.
The appellant, Jeffrey Short, was convicted of two counts of aggravated battery, burglary of a conveyance, and grand theft.
The appellant has raised several arguments on appeal, but we only find merit in his contention that the trial court erred in adjudicating him guilty and sentencing him on both counts of aggravated battery.
When pronouncing sentence, the court properly sentenced the appellant on only one of the two aggravated battery counts. However, the written judgment and sentence reflects a sentence of ten years imprisonment on each of the aggravated battery charges, five years for burglary of a conveyance, and five years for grand theft. All four sentences are to be served concurrently.
Even though the jury found the appellant guilty of two counts of aggravated battery, one under section 784.045(l)(a) and the other under section 784.045(l)(b), Florida Statutes (1979), the appellant only committed one battery, and accordingly, the court should have adjudicated and sentenced him on only one count. Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981).
Since the trial court in pronouncing sentence did not announce which count he was sentencing the defendant under, we remand to the trial court with directions to set aside the adjudication and sentence on one of the counts of aggravated battery.
We affirm the trial court in all other respects.
BOARDMAN, A.C.J., and GRIMES, J., concur.
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Citator
Cited By (29 total)
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Scott v. State, 808 So. 2d 166 (Fla. 2002)…the issue is to be preserved for appellate review. See Gavlick v. State, 740 So. 2d 1212, 1213 (Fla. 2d DCA 1999); Watkins v. State, 519 So. 2d 760, 761 (Fla. 1st DCA 1988); Pittman v. State, 440 So. 2d 657, 659 (Fla. 1st DCA 1983); Holley v. State, 423 So. 2d 562, 564 (Fla. 1st DCA 1982). See also Fla. R.Crim. P. 3.390(c). This was the assumption under which I worked as a trial judge in the Fourth Judicial Circuit for many years. In Brown v. State, 206 So. 2d 377, 384 (Fla.1968), this Court stated that ordi…1 / 2
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Steele v. State, 561 So. 2d 638 (Fla. 1st DCA 1990)…When a jury instruction is requested that is not part of the Florida Standard Jury Instructions, the requested instruction must be submitted in writing to the trial court if the issue is to be preserved for appellate review.” Accord Holley v. State, 423 So. 2d 562, 564 (Fla. 1st DCA 1982). Fundamental error that may be urged on appeal, though not properly preserved in the trial court, is error that amounts to a denial of due process. Castor v. State, 365 So. 2d 701, 704 fn. 7 (Fla.1978). In Bullard v. State,…
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Wilton James Langston v. State, 789 So. 2d 1024 (Fla. 1st DCA 2001)…e defense regarding charges of battery and resisting arrest with violence, and as there was evidence of excessive force that the jury could have believed, convictions for these two offenses were reversed and remanded for new trial); Holley v. State, 423 So. 2d 562 (Fla. 1st DCA 1982) (defendant is entitled to requested instruction on self-defense irrespective of how weak or improbable the testimony may have been with respect to the circumstances leading to the charged offense). Appellant correctly notes that…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981)