KELVIN EUGENE JELKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
Explore caselaw by topic → Browse Simple Battery cases and more on FLexlaw
COWART, Judge.
Kelvin Eugene Jelks, the defendant, appeals his convictions of battery and battery on a law enforcement officer. Defendant was charged with aggravated battery, section 784.045(l)(a), (b), Florida Statutes (1985), and battery on a law enforcement officer, section 784.07(2)(b), Florida Statutes (1985), as a result of his striking a law enforcement officer one time between the eyes with a tree limb saw. The jury convicted the defendant of simple battery as a lesser included offense of the aggravated battery charge and convicted the defendant of the battery on a law enforcement officer. Battery is a necessarily lesser included offense of battery on a law enforcement officer, Crumley v. State, 489 So. 2d 112 (Fla. 1st DCA 1986). In this case the two offenses are factually based on one and the same single factual event, one blow to one law enforcement officer one time with one saw.
Accordingly, the defendant’s conviction for battery constituted a. second conviction for the same substantive offense. It is unconstitutional to convict a defendant twice for the same offense. The defendant’s conviction for the simple battery is reversed.
AFFIRMED IN PART; REVERSED IN PART.
UPCHURCH, C.J., and DAUKSCH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Crapps v. State, 566 So. 2d 62 (Fla. 5th DCA 1990)…not listed as a lesser included offense to the offense of battery on a law enforcement officer in the Standard Jury Instructions, nonetheless, case law makes it clear that simple battery is a lesser included offense to such a charge. Jelks v. State, 509 So. 2d 404 (Fla. 5th DCA 1987); Crumley v. State, 489 So. 2d 112 (Fla. 1st DCA 1986), approved, 512 So. 2d 183 (Fla.1987). A trial judge has no discretion on whether to instruct on a necessary lesser included offense. State v. Wimberly, 498 So. 2d 929 (Fla.198…
-
Pruett v. State, 731 So. 2d 113 (Fla. 1st DCA 1999)…te, 654 So. 2d 253 (Fla. 1st DCA 1995)(eoncluding that appellant may not be convicted of both aggravated battery upon a person 65 years of age or older and aggravated battery, when the convictions arose from the same facts); see also Jelks v. State, 509 So. 2d 404 (Fla. 5th DCA 1987). Accordingly, we vacate appellant’s conviction and sentence for the simple battery. We affirm the remaining conviction and sentence for battery upon a person 65 years of age or older. AFFIRMED IN PART; REVERSED IN PART. JOANOS…
Authorities Cited
- Rossi Borgia v. State, 489 So. 2d 112 (Fla. 2d DCA 1986)
- Crumley v. State, 489 So. 2d 112 (Fla. 1st DCA 1986)