CHAU NGOC NGUYEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal reversed in part the trial court's summary denial of an appellant's 3.850 postconviction motion challenging the sufficiency of evidence for an aggravated battery conviction. The court found that counsel may have been ineffective for failing to move for judgment of acquittal where the state failed to prove either great bodily harm or that a stun gun constituted a deadly weapon.
The court reversed the summary denial of the postconviction motion regarding the aggravated battery charge. The record contained insufficient evidence as a matter of law to support a conviction for aggravated battery based on either great bodily harm or use of a deadly weapon, warranting reversal and remand for further proceedings.
[1] A trial court must attach portions of the record that conclusively refute a claim of ineffective assistance of counsel when summarily denying a postconviction motion.
[2] Proof of great bodily harm requires evidence of harm beyond slight, trivial, minor, moderate, or some harm.
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“A deadly weapon is 1) any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm, or 2) any instrument likely to cause great bodily harm because of the way it is used during a crime.”
Establishes the legal definition of deadly weapon used by the court to evaluate whether a stun gun qualifies.
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Join FLexlaw to unlock all legal intelligenceAppellant Chau Ngoc Nguyen was convicted of robbery with a firearm, carrying a concealed firearm, and aggravated battery. The aggravated battery charg…
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PER CURIAM.
The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to conclusively refute the appellant’s claim that counsel was ineffective for failing to move for a judgment of acquittal where the state failed to prove that the stun gun either caused great bodily harm or constituted a deadly weapon, we reverse. We affirm all other issues raised in the appellant’s motion without discussion.
The appellant was convicted of robbery with a firearm, carrying a concealed firearm, and aggravated battery. The appellant was charged with aggravated battery for either causing great bodily harm, permanent disability, or permanent disfigurement to the victim or by using a deadly weapon, to wit: an electric stun gun. Proving great bodily harm requires proving more than slight, trivial, minor, moderate, or some harm. See C.A.C. v. State, 771 So. 2d 1261, 1262 (Fla. 2d DCA 2000).
The record attachments in this case show that the victim testified that it hurt when she was shot with the stun gun and that it caused her to lie down and an officer testified that he saw burn marks on the victim.
However, there was no testimony that the victim required medical treatment for her burns or that she had any lasting ill effects or scars from the use of the stun gun.
Thus, it appears that there was insufficient testimony as a matter of law to support a charge of aggravated battery for causing great bodily harm. See Williams v. State, 651 So. 2d 1242, 1243 (Fla. 2d DCA 1995); C.A.C. v. State, 771 So. 2d at 1262.
“A deadly weapon is 1) any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm, or 2) any instrument likely to cause great bodily harm because of the way it is used during a crime.” D. C. v. State, 567 So. 2d 998, 1000 (Fla. 1st DCA 1990). No cases in Florida appear to have determined whether a stun gun can constitute a deadly weapon either by its ordinary use, or by the way it was used in a crime. In the instant case, the state failed to present any testimony that a stun gun qualifies as a deadly weapon by its ordinary use and there was insufficient evidence to establish that it was a deadly weapon in the manner it was used on this victim.
Thus, it appears that there was insufficient evidence as a matter of law to support a charge of aggravated battery for the use of a deadly weapon.
Because the trial court’s attachments are insufficient to refute the appellant’s claim that counsel was ineffective for failing to move for a judgment of acquittal on the basis that there was insufficient evi dence to support the aggravated battery charge, we reverse the trial court’s summary denial and remand for the attachment of further record portions that conclusively refute the appellant’s claim or for an evidentiary hearing.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
BOOTH, BENTON and LEWIS, JJ., concur.
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Citator
Cited By (13 total)
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Wheeler v. State, 203 So. 3d 1007 (Fla. 4th DCA 2016)…CA 2007). To establish great bodily harm, “[t]he state ‘must prove more than that the victim suffered some harm.’ ” Smith v. State, 175 So. 3d 906, 908 (Fla. 4th DCA [*1010] 2015) (quoting T.W. v. State, 98 So. 3d at 243); see also Nguyen v. State, 858 So. 2d 1259, 1260 (Fla. 1st DCA 2003) (holding where “there was no testimony that the victim required medical treatment for her burns or that she had any lasting ill effects or scars ... there was insufficient testimony as a matter of law to support a charge of…
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Gordon v. State, 126 So. 3d 292 (Fla. 3d DCA 2011)…great bodily harm” not established for aggravated battery where defendant stabbed victim two or three times with a fork, leaving victim with scratches, swelling and puncture marks for which victim did not receive medical treatment); Nguyen v. State, 858 So. 2d 1259, 1260 (Fla. 1st DCA 2003) (holding “great bodily harm” not established for aggravated battery charge where victim testified she was in pain and had burn marks when defendant shot her with a stun gun; the State presented no evidence that victim requi…
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Morton v. State, 988 So. 2d 698 (Fla. 1st DCA 2008)….g., Smith v. State, 969 So. 2d 452, 455 (Fla. 1st DCA 2007) (observing that “great bodily harm is ‘distinguished from slight, trivial, minor, or moderate harm’ ”) (quoting C.A.C. v. State, 771 So. 2d 1261, 1262 (Fla. 2d DCA 2000)); Nguyen v. State, 858 So. 2d 1259, 1260 (Fla. 1st DCA 2003) (same); Chesnoff v. State, 840 So. 2d 423, 426 (Fla. 5th DCA 2003) (same). These cases track the broader theme in Florida criminal law that, in general, a victim can sustain one of three degrees of injury: slight, moderate,…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- D.C. v. State, 567 So. 2d 998 (Fla. 1st DCA 1990)
- C.A.C. v. State, 771 So. 2d 1261 (Fla. 2d DCA 2000)
- Alfraedo Williams v. State, 651 So. 2d 1242 (Fla. 2d DCA 1995)