H.E.S., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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H.E.S., a juvenile, was adjudicated delinquent for attempted aggravated battery on a law enforcement officer after throwing a bottle at a deputy sheriff following a high school football game. The court reversed because the statute under which he was convicted does not exist, and remanded for conviction and sentencing under the correct statute for attempted aggravated battery.
The court reversed H.E.S.'s adjudication and sentence because he was found guilty of a nonexistent crime. Upon remand, H.E.S. must be found guilty of attempted aggravated battery under the correct statute and resentenced accordingly.
[1] A bottle can be classified as a deadly weapon if it is an instrument that could have caused death or great bodily harm when thrown.
[2] A conviction for attempted aggravated battery on a law enforcement officer is reversed when the State concedes the crime as charged does not exist.
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“the State concedes on appeal that H.E.S. was found guilty of the nonexistent crime of attempted aggravated battery on a law enforcement officer”
Establishes the fatal flaw in the conviction—the statute under which H.E.S. was adjudicated does not exist
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAfter a high school football game at approximately 11:45 p.m., a public disturbance occurred. Deputy Michael Locke responded and heard a bottle hit th…
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GREEN, Judge.
H.E.S., a child, appeals the trial court’s order withholding adjudication of delinquency and placing him on community control for the crime of attempted aggravated battery on a law enforcement officer. We reverse and remand. The charge arose from a public disturbance, at about 11:45 p.m., after a high school football game. Deputy Michael Locke of the Hillsborough County Sheriffs Office responded to the call and saw a group of people turning to walk away. He got out of his patrol car and was looking around when he heard a bottle hit the ground and then hit his car, about two feet from him. Deputy Locke did not see Who threw the bottle.
Deputy Thomas Kelly of the Hillsbor-ough County Sheriffs Office arrived shortly after Locke. He saw Locke, who was outside of his vehicle, and several people who were yelling at Locke. Kelly saw H.E.S. throw a bottle overhand in the direction of Locke, striking within one or two feet of Locke. As Kelly jumped out of his patrol car, H.E.S. began to run away, along with the rest of the crowd. Kelly stopped H.E.S. within twenty-five yards, and H.E.S. told Kelly that he had thrown the bottle and that he was “just being stupid.” H.E.S. did not say that he threw the bottle to hit Locke. The bottle was received into evidence and referred to as a “beer bottle.”
The evidence supports the contention that the bottle, when thrown by H.E.S. at Officer Locke, was an instrument that could have caused death or great bodily harm and was, therefore, correctly classified as a deadly weapon. See Elliot v. State, 704 So. 2d 606 (Fla. 4th DCA 1997); E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989); State v. Hartman, 130 Ohio App.3d 645, 720 N.E. 2d 971 (1998); Arevalo v. State, 939 P. 2d 228 (Wyo.1997); Floyd v. United States, 538 A. 2d 248 (D.C.1988).
However, the State concedes on appeal that H.E.S. was found guilty of the nonexistent crime of attempted aggravated battery on a law enforcement officer. We therefore reverse H.E.S.’s judgment and sentence. Upon remand, we direct that H.E.S. be found guilty of the crime of attempted aggravated battery and that he be sentenced for this charge. See Merritt v. State, 712 So. 2d 384 (Fla.1998); Case v. State, 723 So. 2d 328 (Fla. 2d DCA 1998); § 784.07(2)(b), Fla. Stat. (Supp.1998).
Reversed with directions.
WHATLEY, A.C.J., and NORTHCUTT, J., Concur.
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E.M.M. v. State, 836 So. 2d 1125 (Fla. 3d DCA 2003)…ggravated battery is that the three-foot long broomstick used by the juvenile’s co-respondent to strike the victim did not qualify as a deadly weapon under section 784.045(l)(a)2, Florida Statutes (2002). We disagree and affirm. See H.E.S. v. State, 773 So. 2d 80 (Fla. 2d DCA 2000); Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997), review granted, 701 So. 2d 868 (Fla.1997), approved, 703 So. 2d 1062 (Fla.1997); Taylor v. State, 672 So. 2d 580 (Fla. 1st DCA 1996). See generally D.C. v. State, 567 So. 2d 9…
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W.T.D. v. State, 906 So. 2d 333 (Fla. 4th DCA 2005)…the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses. 712 So. 2d at 385 (emphasis in original). Accord H.E.S. v. State, 773 So. 2d 80 (Fla. 2d DCA 2000) (instructing the lower court to enter judgment for the crime of attempted aggravated battery instead of attempted aggravated battery on a law enforcement officer, a nonexistent crime). Here, W.T.D. should have been found guilty o…
Authorities Cited
- Merritt v. State, 712 So. 2d 384 (Fla. 1998)
- E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989)
- Elliot v. State, 704 So. 2d 606 (Fla. 4th DCA 1997)
- Case v. State, 723 So. 2d 328 (Fla. 2d DCA 1998)