HARRY BERNARD DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Davis appeals his aggravated battery conviction and 30-year habitual offender sentence. The court reversed the aggravated battery conviction and reduced it to simple battery because the state charged and proved only that Davis kicked the victim with his foot, without proving use of a deadly weapon (such as shoes or boots), which is required to establish aggravated battery.
A shoe or boot worn on a foot that delivers a blow may constitute use of a deadly weapon depending on the evidence, but because the indictment only alleged use of a foot and there was no testimony about shoes or boots, the state failed to charge and prove the deadly weapon element. The aggravated battery conviction is reversed and reduced to simple battery, and both sentences are reversed and remanded for resentencing.
[1] A conviction for aggravated battery requires the state to charge and prove the use of a deadly weapon.
[2] A foot, when worn with a shoe or boot, may constitute a deadly weapon for purposes of aggravated battery, depending on the evidence.
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Join FLexlaw to unlock all legal intelligence“The term "deadly weapon" must be strictly construed.”
Establishes the legal standard for interpreting what constitutes a deadly weapon in aggravated battery cases.
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Join FLexlaw to unlock all legal intelligenceDavis kicked a victim in the face and torso while the victim was helpless on the ground searching for broken glasses. The victim suffered skull fractu…
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W. SHARP, Judge.
Davis appeals from his conviction for aggravated battery,1 and his enhanced habitual offender sentence of 30 years for the battery offense and resisting an officer with violence.2 He argues the state failed to charge and prove aggravated battery because the sole basis for enhancing the battery from simple to aggravated was that Davis kicked the victim with his foot. We agree and reverse in part.
The indictment charged Davis with battery with a deadly weapon, “To-wit: The foot of Harry Davis, without intent to kill.” Proof at trial related solely to how Davis viciously kicked the victim with his foot in the face and torso while the victim was helpless, on the ground, feeling around for his broken glasses. The only testimony suggesting Davis was wearing heavy shoes when kicking the victim was the treating physician’s testimony that the victim’s skull fractures near his eye could not have been caused by a blow from Davis’ fist without breaking bones in Davis’ hand, which did not occur. The issue in this case is whether or not kicking with a foot can constitute use of a deadly weapon. The term “deadly weapon” must be strictly construed. Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984). We agree that a shoe or boot worn on a foot which delivers a blow to a victim may be found, depending on the evidence in the case, to be use of a deadly weapon.3 However, in this case, the indictment only alleged use of a foot, and there was no testimony about shoes or boots on Davis’ foot when the victim was kicked (assuming arguendo, it can be inferred that people near a bar in Putnam County, late at night, commonly wear shoes).
The failure to charge and prove the deadly weapon element of aggravated battery in this case is fatal. We reverse the aggravated battery charge and reduce it to simple battery. Because Davis was sentenced for both offenses in this case on the basis of the single scoresheet involved, we must reverse both sentences and remand for resentencing. We reject Davis’ other arguments on appeal that the trial court erred in scoring the victim’s injuries as severe, or that the habitual offender statute is unconstitutional. See King v. State, 557 So. 2d 899 (Fla. 5th DCA 1990); Long v. State, 558 So. 2d 1091 (Fla. 5th DCA 1990).
REVERSED in part; REMANDED for resentencing.
GOSHORN and GRIFFIN, JJ., concur. . § 784.045(l)(a), Fla.Stat. (1987).
. § 843.02, Fla.Stat. (1987).
. See Johnson v. State, 249 So. 2d 452 (Fla. 4th DCA 1971); Bass v. State, 172 So. 2d 614 (Fla. 2d DCA 1965).
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Ruland v. State, 614 So. 2d 537 (Fla. 3d DCA 1993)…s to the other claimed fifteen-point scoring error, even if the disputed offense was scored as a misdemeanor, rather than a second-degree felony, the sentencing guidelines range would remain the same, and any error here was harmless. Davis v. State, 565 So. 2d 826 (Fla. 5th DCA 1990); Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985); see Peeples v. State, 575 So. 2d 316 (Fla. 2d DCA 1991); Pire v. State, 575 So. 2d 299 (Fla. 4th DCA 1991). Affirmed.…
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Dixon v. State, 603 So. 2d 570 (Fla. 5th DCA 1992)…lso State v. Jeffers, 490 So. 2d 968, 969 (Fla. 5th DCA 1986). Appellant argues that the evidence does not support the contention that the use of his hands in committing a battery constituted use of a deadly weapon. He notes that in Davis v. State, 565 So. 2d 826 (Fla. 5th DCA 1990), this court held that the defendant’s kicking his victim with his foot did not constitute use of a “deadly weapon,” precluding enhancement of a battery from simple to aggravated. The pertinent facts in Davis are: The indictment…1 / 2
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Trombley v. State, 754 So. 2d 121 (Fla. 5th DCA 2000)…at the points assessed for specific victims were inappropriately categorized as “severe” for one and “slight” for another. The testimony in the record is sufficient to support both. See Ely v. State, 719 So. 2d 11 (Fla. 2d DCA 1998); Davis v. State, 565 So. 2d 826 (Fla. 5th DCA 1990); Green v. State, 496 So. 2d 256 (Fla. 5th DCA 1986). Fifth, Trombley argues the trial court erred in assessing six points on his sentencing scoresheet for a community sanction violation. Again, Trombley did not preserve this iss…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Caracciolo v. State, 557 So. 2d 899 (Fla. 4th DCA 1990)
- Duba v. State, 446 So. 2d 1167 (Fla. 5th DCA 1984)
- Bass v. State, 172 So. 2d 614 (Fla. 2d DCA 1965)
- Johnson v. State, 249 So. 2d 452 (Fla. 4th DCA 1971)
- Long v. State, 558 So. 2d 1091 (Fla. 5th DCA 1990)