J.S., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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J.S., a juvenile, was adjudicated delinquent for attempted battery on a law enforcement officer and grand theft auto. The court reversed the attempted battery conviction, holding that Florida law does not recognize attempted battery on a law enforcement officer as a substantive crime, and remanded for resentencing on the lesser offense of attempted battery.
J.S.'s adjudication for attempted battery on a law enforcement officer is reversed because that offense does not exist under Florida law. Section 784.07 is an enhancement statute that reclassifies enumerated offenses committed against law enforcement officers, not a statute creating new criminal offenses, and therefore does not apply to attempts. The case is remanded for resentencing on the crime of attempted battery.
[1] Florida law does not recognize the substantive offense of attempted battery on a law enforcement officer.
[2] Section 784.07 of the Florida Statutes, which enhances penalties for certain offenses against law enforcement officers, does not create new substantive offenses and does…
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 enhancement statute contains no enhancement or reclassification of penalties for the offense of attempted commission of 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.”
Establishes the core legal principle that Florida law does not recognize attempted battery on a law enforcement officer as a crime.
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Join FLexlaw to unlock all legal intelligenceJ.S. was adjudicated delinquent on two charges: attempted battery on a law enforcement officer and grand theft auto. The trial court found J.S. delinq…
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PALMER, J.
J.S. appeals his juvenile delinquency disposition order. Concluding that J.S. was improperly adjudicated delinquent on the non-existent crime of attempted battery on a law enforcement officer, we reverse and remand for resentencing for the crime of attempted battery and for entry of a new disposition order. J.S. was adjudicated delinquent on two separate charges: attempted battery on a law enforcement officer1 and grand theft auto.2 On appeal, J.S. challenges his adjudication of delinquency and his disposition order claiming that the trial court committed error by adjudicating him delinquent on the nonexistent crime of attempted battery on a law enforcement officer. We agree.
In Merritt v. State, 712 So. 2d 384 (Fla.1998), the supreme court held that section 784.07 of the Florida Statutes, which enhances the punishment for committing assault, aggravated assault, battery and aggravated battery committed against law enforcement and other specified public officers, does not create new substantive offenses and, by its plain language, does not apply to “attempts” to commit the enumerated crimes. The court explained:
The enhancement statute contains no enhancement or reclassification of penalties for the offense of attempted commission of 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.
Id. at 385.
The State argues that the supreme court has since determined that section 784.07 is a reclassification statute, and thus creates a substantive crime of attempted battery on a law enforcement officer, citing to Mills v. State, 822 So. 2d 1284 (Fla.2002). However, a close reading of Mitts reveals that the supreme court reiterated its position that section 784.07 of the Florida Statutes is an enhancement statute which reclassified enumerated offenses committed against law enforcement officers rather than a statute creating new criminal offenses. See Mills, 822 So. 2d at 1286-1287.
Other recent cases have also held that attempted assault, battery or aggravated assault on one of the enumerated individuals set forth in section 784.07 of the Florida Statutes are non-existent crimes. See Moore v. State, 924 So. 2d 840, 2006 WL 12960 (Fla. 4th DCA January 4, 2006)(holding attempted aggravated assault on a law enforcement officer is not a crime in Florida); W.T.D. v. State, 906 So. 2d 333 (Fla. 4th DCA 2005)(holding sentence enhancement statute did not create offense of attempted battery on school employee, and thus minor’s adjudication of delinquency should have been based on finding that minor committed attempted battery).
Accordingly, J.S.’s adjudication of delinquency on the non-existent crime of attempted battery on a law enforcement officer is reversed and the trial court is directed to hold a new disposition hearing and re-sentence J.S. for the crime of attempted battery. See W.T.D. v. State, 906 So. 2d 333 (Fla. 4th DCA 2005)(re-manding the case with instructions for the trial court to enter an adjudication of delinquency based upon a finding that W.T.D. committed attempted battery and, consequently, to hold a new disposition hearing).
J.S.’s other claims of error raised on appeal are without merit.
REVERSED and REMANDED.
PLEUS, C.J. and SAWAYA, J„ concur. . §§ 784.07(2)(b); 777.04, Fla. Stat. (2004).
. § 812.014, Fla. Stat. (2004).
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Cited By
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Myers v. State, 16 So. 3d 918 (Fla. 3d DCA 2009)…PER CURIAM. Affirmed. See Merritt v. State, 712 So. 2d 384, 385 (Fla.1998) (finding that attempted battery on a law enforcement officer is a non-existent crime and ordering that the defendant be resentenced to attempted battery); J.S. v. State, 925 So. 2d 438, 438 (Fla. 5th DCA 2006) (ordering resentencing of defendant to attempted battery from the non-existent charged crime of attempted battery on a law enforcement officer); see also Velez v. State, 988 So. 2d 707, 708 (Fla. 3d DCA 2008) (finding that t…
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J.W. v. State, 39 So. 3d 523 (Fla. 5th DCA 2010)…PER CURIAM. J.W. was found guilty of attempted assault upon a school employee — a crime which we have previously determined to be non-existent in Florida. See J.S. v. State, 925 So. 2d 438 (Fla. 5th DCA 2006) (section 784.07’s enhancement of punishment for assault, aggravated assault, battery, or aggravated battery committed against law enforcement official or other specified public officials did not apply to attempt to commit crimes…
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J.J. v. State, 76 So. 3d 413 (Fla. 3d DCA 2012)…der finding him delinquent for attempted battery on a law enforcement officer and withholding adjudication. Upon the State’s proper confession of error, and on the binding authority of Merritt v. State, 712 So. 2d 384, 385 (Fla.1998); J.S. v. State, 925 So. 2d 438 (Fla. 5th DCA 2006); and Brown v. State, 798 So. 2d 827 (Fla. 3d DCA 2001), we reverse and remand with instructions to vacate the order of delinquency for attempted battery on a law enforcement officer and to issue an order finding J.J. delinquent a…
Authorities Cited
- Merritt v. State, 712 So. 2d 384 (Fla. 1998)
- Gayson Mills v. State, 822 So. 2d 1284 (Fla. 2002)
- Moore v. State, 924 So. 2d 840 (Fla. 4th DCA 2006)
- Allen v. Tuesday Danyell Hall-Allen, 906 So. 2d 333 (Fla. 4th DCA 2005)
- W.T.D. v. State, 906 So. 2d 333 (Fla. 4th DCA 2005)