08-2987 MARCELLUS DESMOND CALLOWAY, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 08-2987

Case Date: 04/29/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

MARCELLUS DESMOND CALLOWAY, Appellant,

CASE NO. 1D08-2987 v. STATE OF FLORIDA, Appellee. _____________________________/ Opinion filed April 29, 2010. An appeal from the Circuit Court for Wakulla County. N. Sanders Sauls, Judge. Edward T. Bauer of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appellant. Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

HAWKES, C.J. The defendant in this direct criminal appeal challenges his conviction for aggravated battery on a law enforcement officer. Specifically, the defendant

argues the trial court committed fundamental error by instructing the jury on an uncharged alternative theory of aggravated battery. We disagree. We affirm the

defendant's conviction holding section 784.045, Florida Statutes (2008), creates two, not four, distinct aggravated battery crimes and that the trial court properly instructed the jury under the first of the two distinct crimes. Defendant's Argument The defendant raises a detailed argument that reversal is warranted because he may have been convicted of a crime he was not charged with committing. His argument is: (1) Section 784.045 creates four separate crimes of aggravated battery; (2) The information charged the defendant with committing "great bodily harm aggravated battery," one of the four separate crimes, not "permanent disability aggravated battery," another of the crimes; (3) At trial, the State introduced unobjected-to evidence that was probative of this "permanent disability aggravated battery"; (4) At the close of trial, the trial judge read, without objection, the standard jury instruction for aggravated battery. Contained within the standard instruction was the uncharged crime of "permanent disability aggravated battery"; (5) Because the jury may have convicted the defendant for committing this "permanent disability aggravated battery" rather than the charged "great bodily harm aggravated battery," the instruction was erroneous; and (6) Such an error is per se reversible. We disagree. There are at least five flaws in the defendant's logic which we have set out below. In the first section, we explain that the statute creates two, not four aggravated battery offenses. In the last four sections, we 2

explain why we would affirm the defendant's conviction even if he were correct in arguing the statute created four aggravated battery offenses. First, section 784.045 creates only two aggravated battery crimes, not four. Both the structure of the statute and the case law interpreting the statute support this premise. Second, the information sufficiently placed the defendant on notice as to what conduct he was being prosecuted for, rendering any error harmless. Third, the evidence presented supports a finding of great bodily injury, the crime charged. The fact that the evidence could also support another uncharged crime is inconsequential. Fourth, the standard jury instruction did not result in fundamental error, under these facts. Fifth, existing case law prohibits reversal. On two separate occasions, the defendant acquiesced and agreed to the use of the allegedly erroneous jury instruction. Accordingly, the error was invited and cannot result in reversal. We discuss each of these five points in turn. The Statute Consists of Two Subsections and Creates Only Two Offenses of Aggravated Battery Section 784.045 sets forth only two crimes of aggravated battery. Evidence that the statute creates two crimes can be found in the simple fact that the statute contains two subsections. The first subsection, 784.045(1)(a)1, sets forth a crime 3

that focuses on the harm suffered by the victim. Included in this crime are acts resulting in what the statute describes as great bodily harm, permanent disability, or permanent disfigurement. The second subsection, 784.045(1)(a)2, sets forth a crime that focuses on the weapon the defendant used to commit the battery. Only the first subsection is relevant to the instant case. Not only does the structure of section 784.045 logically suggest two crimes, but the Florida Supreme Court has interpreted the statute as creating only two crimes. See State v. Warren, 796 So. 2d 489 (Fla. 2001). In Warren, the Court held "[t]he term aggravated battery refers to the touching or striking (battery) of another which causes great bodily injury [the first crime

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