JORDAN HENDRICKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that it was error to instruct the jury on an alternative method of committing battery on a law enforcement officer that was not charged in the information.
Appellant was convicted of battery on a law enforcement officer, resisting arrest without violence, and possession of cocaine. The information charged…
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PER CURIAM.
This is a timely appeal from a conviction and sentence for battery on a law enforcement officer, resisting arrest without violence, and possession of cocaine. Appellant asserts that the trial court erred in instructing the jury on both alternative methods of committing battery on a law enforcement officer where only one alternative was charged in the information. We agree. See O’Bryan v. State, 692 So. 2d 290 (Fla. 1st DCA 1997) (holding that it was error to instruct on theory of violation of section 800.04, Florida Statutes, which had not been charged in information); see also Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999) (holding that it was error to instruct jury on theory of committing aggravated assault, which had not been charged in the information).
Battery on a law enforcement officer can be committed in two ways. A defendant can commit a battery on a law enforcement officer either by actually and intentionally touching or striking the officer against the officer’s will, or by intentionally causing bodily harm to the officer. See §§ 784.03(l)(a) & 784.07(2)(b), Fla. Stat. (1997). In this case, appellant was charged with having committed battery on a law enforcement officer by actually and intentionally touching or striking Officer Hall against Officer Hall’s will. Appellant was not charged with having committed battery on a law enforcement officer by intentionally causing bodily harm to Officer Hall; thus, it was error for the trial court to instruct the jury on this alternative.
Appellant’s conviction and sentence for battery on a law enforcement officer is reversed, and the case is remanded for a new trial on that charge. Appellant’s convictions and sentences for resisting arrest without violence and possession of cocaine are affirmed.
JOANOS, WOLF and BENTON, JJ., concur.
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Dixon v. State, 823 So. 2d 792 (Fla. 2d DCA 2001)…defendant is entitled to have the jury instructed on the offense with which he is charged. Here, the jury was improperly instructed on the bodily harm form of battery although Dixon was not charged with that form of battery. See Hendricks v. State, 744 So. 2d 542 (Fla. 1st DCA 1999). This error is fundamental because the jury’s general verdict makes it impossible to know whether Dixon was convicted of the offense with which he was charged, i.e., intentional touching battery, or an offense with which he was n…
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Geronimo Vega v. State, 900 So. 2d 572 (Fla. 2d DCA 2004)…th violence charge. Battery on a law enforcement officer can be committed either by “actually or intentionally touching or striking the officer against the officer’s will, or by intentionally causing bodily harm to the officer.” Hendricks v. State, 744 So. 2d 542, 542 (Fla. 1st DCA 1999); see §§ 784.03(l)(a), .07(2)(b), Fla. Stat. (2001). A defendant is entitled to have the jury instructed on the offense with which he is charged. Dixon v. State, 823 So. 2d 792, 794 (Fla. 2d DCA 2001) (citing Zwick v. State,…
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Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001)…la. 4th DCA 1999). Moreover, “[b]e-cause the court instructed the jury on a crime not charged, the resulting verdict is a nullity.” Abbate, 745 So. 2d at 410. Such an instruction is also fundamental error. Taylor, 760 So. 2d 298; Hendricks v. State, 744 So. 2d 542 (Fla. 1st DCA 1999); Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999). Hence, were we to affirm the kidnapping convictions, we would be affirming convictions that, at law, are a nullity. This we will not do. Based on the foregoing, we direct th…
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- Boca Raton Small Engines & Emp'rs Self Ins. Fund v. Bellak, 692 So. 2d 290 (Fla. 1st DCA 1997)
- Fuentes v. State, 730 So. 2d 366 (Fla. 4th DCA 1999)