MARTHA COCHRAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Martha Cochran appealed her conviction for battery upon a person 65 years or older, arguing that the state was required to prove she knew her victim was over 65 to qualify for the enhanced charge. The appellate court agreed, reversed her third-degree felony conviction, and remanded for reclassification to a first-degree misdemeanor and resentencing with removal of invalid probation conditions.
The enhancement requires the defendant to know the victim is 65 or older. Because no evidence proved Cochran knew the victim's age, the offense must be reclassified to a first-degree misdemeanor. Additionally, probation conditions that were not orally pronounced in open court and those lacking nexus to the crime or future criminality must be stricken.
[1] A statute enhancing a battery offense to a felony based on the victim's age requires proof that the defendant knew the victim was 65 or older.
[2] Retroactive application of a statute eliminating a knowledge requirement for an enhanced offense violates the ex post facto prohibition.
Previewing 2 of 4 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“Cochran contended that it was necessary for the state to allege and prove that she knew that her victim was over the age of 65 in order for her to be convicted of the enhanced offense. Cochran is correct.”
The court validates the core argument that knowledge of the victim's age is required for the enhancement.
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Join FLexlaw to unlock all legal intelligenceCochran, a nursing home worker, was charged with battering an elderly incompetent woman approximately 80 years old. She was convicted under Florida St…
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FRANK, Chief Judge.
Martha Cochran has appealed from a conviction for battery upon a person 65 years of age or older. We reverse and remand for reclassification of the offense from a third degree felony to a first degree misdemeanor and for appropriate resentencing.
Cochran, a worker in a nursing home, was charged with battering an elderly incompetent woman who was approximately 80 years old at the time of the offense. The statute Cochran was convicted of violating, section 784.08(2)(c), Florida Statutes (1989), provided, at the time of the misconduct attributed to her, as follows:
(2) Whenever a person is charged with knowingly committing an assault or aggravated assault or a battery or aggravated battery upon a person 65 years of age or older, the offense for which the person is charged shall be reclassified as follows:
(c) In the case of a battery, from a misdemeanor of the first degree to a felony of the third degree.
Cochran contended that it was necessary for the state to allege and prove that she knew that her victim was over the age of 65 in order for her to be convicted of the enhanced offense. Cochran is correct. Both the first and fourth districts, in dealing with this statute, have clearly held that enhancement of a misdemeanor battery to a third degree felony based on the victim’s age requires the defendant to know that He or she is battering a person 65 or older. See Gordon v. State, 603 So. 2d 512 (Fla. 1st DCA 1992); Bryant v. State, 599 So. 2d 1349 (Fla. 1st DCA 1992); State v. Nelson, 577 So. 2d 971 (Fla. 4th DCA 1991).
Although the statute has been amended to eliminate the knowledge requirement, see section 784.08(2)(c), Florida Statutes (Supp. 1992), retroactive application of the current statute to this offense would violate the ex post facto prohibition. See Saavedra v. State, 576 So. 2d 953 (Fla. 1st DCA 1991), affirmed, 622 So. 2d 952 (Fla.1993).
Because no evidence was adduced to prove that Cochran knew the victim’s age, we must remand for reclassification of the offense to a first degree misdemeanor. At resentencing for the first degree misdemeanor, the trial court must also reexamine the special conditions of probation imposed upon Cochran. Some of the conditions were not orally pronounced in open court, thus depriving the appellant of an opportunity contemporaneously to object to them, and' they therefore must be stricken. See Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992).
Moreover, certain of the conditions, relating to alcohol or drug evaluations or to visiting bars, bear no relationship to the crime with which Cochran was convicted, relate to conduct that is not in itself criminal, or require or forbid conduct not reasonably related to future criminality. Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979). In upholding our Rodriguez standards, the Florida Supreme Court recently stated in Biller v. State, 618 So. 2d 734, 735 (Fla.1993), that a challenge on the basis of relevance to imposition of special conditions of probation will be sustained unless “the record supports at least one of the circumstances outlined in Rodriguez.” Accordingly, on remand, special conditions 10, 11, and 12 shall be stricken.
Reversed and remanded.
RYDER and CAMPBELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Hamrick v. State, 648 So. 2d 274 (Fla. 4th DCA 1995)…ttery on a person 65 years of age or older. § 784.08(2). The "enhancement of a misdemeanor battery to a third degree felony based on the victim's age requires the defendant to know that he or she is battering a person 65 or older." Cochran v. State, 622 So. 2d 166, 167 (Fla. 2d DCA 1993); see also State v. Nelson, 577 So. 2d 971 (Fla. 4th DCA 1991). Thus, an even stronger argument against a double jeopardy violation can be made in this case since knowledge of the victim’s age, an element of the reclassificati…
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Smith v. State, 650 So. 2d 689 (Fla. 3d DCA 1995)…and hold that an enhancement of a misdemeanor battery to a third degree felony based on the victim’s age requires proof of actual knowledge on the part of the defendant that he or she is battering a person 65 years of age or older. Cochran v. State, 622 So. 2d 166 (Fla. 2d DCA 1993); Gordon v. State, 603 So. 2d 512 (Fla. 1st DCA 1992); Bryant v. State, 599 So. 2d 1349 (Fla. 1st DCA 1992); State v. Nelson, 577 So. 2d 971 (Fla. 4th DCA 1991). In so holding, we recognize that since Smith’s commission of this of…
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Gangapersad Ramroop v. State, 174 So. 3d 584 (Fla. 5th DCA 2015)…ery on persons 65 years of age or older — section 784.08 — was previously interpreted by courts as requiring knowledge of the victim’s status, although knowledge of the victim’s status was not expressly required in the statute. See Cochran v. State, 622 So. 2d 166, 167 (Fla. 2d DCA 1993). The Legislature then revised the statute to make clear that the penalty shall increase by one degree “regardless of whether [the defendant] knows or has reason to know the age of the victim.” See § 784.08(2), Fla. Stat. (201…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Biller v. State, 618 So. 2d 734 (Fla. 1993)
- Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)
- Saavedra v. State, 622 So. 2d 952 (Fla. 1993)
- Saavedra v. State, 576 So. 2d 953 (Fla. 1st DCA 1991)
- Porter v. State, 609 So. 2d 640 (Fla. 1st DCA 1992)
- Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992)
- State v. Nelson, 577 So. 2d 971 (Fla. 4th DCA 1991)
- Patrick v. Brown, 603 So. 2d 512 (Fla. 3d DCA 1992)
- Bryant v. State, 599 So. 2d 1349 (Fla. 1st DCA 1992)