ROBERT JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that spitting on a law enforcement officer does not qualify as a forcible felony for sentencing as a violent career criminal.
Robert Johnson was convicted of battery on a law enforcement officer for spitting on the officer and was sentenced as a violent career criminal. The c…
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PER CURIAM.
The opinion filed November 6, 2002 is withdrawn, and the following is substituted in its place.
Robert Johnson was convicted of (among other offenses) one count of battery on a law enforcement officer and was sentenced as a violent career criminal as provided by section 775.084, Florida Statutes (2001). We reverse, and remand for resentencing.
Johnson’s current (battery) offense, spitting on a law enforcement officer, is not one of the forcible felonies enumerated in section 776.08 and does not amount to “the use or threat of use of physical force or violence” as provided by that section.1 Battery is a qualifying offense where the defendant struck or intentionally caused bodily harm to another person. § 784.03(l)(a)l, 2, Fla. Stat. (2001). While spitting on a law enforcement officer amounts to an unwanted touching, it does not amount to the use or threat of use of physical force or violence. Johnson’s spitting offense is not a qualifying one for sentencing as a violent career criminal.
Because Johnson does not have any current qualifying offense that would authorize application of the violent career criminal sentencing statute, we reverse and remand for a new sentencing proceeding in accordance with this opinion.
. Imposition, of a violent career criminal sentence requires the trial court find that, in addition to three or more prior qualifying felony convictions, the defendant’s current conviction must also be a qualifying offense. See § 775.084(l)(d)(l)a-g, (2),(3), Fla. Stat. (2001).
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Hearns v. State, 912 So. 2d 377 (Fla. 3d DCA 2005)…ust be one that involves the “use or threat of physical force or violence against any individual.” § 776.08, Fla. Stat. (2000). Mere unwanted touching does not amount to the “use or threat of use of physical force or violence.” See Johnson v. State, 858 So. 2d 1071 (Fla. 3d DCA 2003)(“while spitting on a law enforcement officer amounts to unwanted touching, it does not amount to the use or threat of use of physical force or violence”). See also § 784.03(l)(a) and (b), Fla. Stat. (1985)(statutory elements of ba…
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Robert E. Banks v. Jones, 197 So. 3d 1152 (Fla. 1st DCA 2016)…ct “which could have resulted in injury to another.” In his petition for writ of habeas corpus filed in the Eighth Judicial Circuit, Petitioner essentially argued that he could not be assigned to Close Management I housing, citing Johnson v. State, 858 So. 2d 1071 (Fla. 3d DCA 2003), which held that spitting in a law enforcement officer’s face was not a forcible felony involving violence as defined under the Prison Releasee Reof-fender Act. Petitioner never denied the underlying act of spitting in the victim’…
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