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Florida Third District Court of Appeal - Criminal Headnotes | December 27, 2017

CARLOS JOSE GARCIA V. STATE OF FLORIDA – POST-CONVICTION MOTION TO CORRECT ILLEGAL SENTENCE; HABITUAL VIOLENT FELONY OFFENDER

Appeal from an order denying a post-conviction motion to correct an illegal sentence.

The defendant had pled guilty in 1995 to aggravated assault with a firearm and was sentenced to probation. In 1999 he was convicted of an armed robbery he committed in 1996. The trial court sentenced him to forty years in prison, with a minimum mandatory sentence of fifteen years as a habitual violent felony offender.

Citing section 775.084(1)(b)(2)(a) of the Florida statutes, as in effect when he was sentenced in 1999, the defendant argued the 1995 conviction could not be used to enhance the sentence, because he was not serving "a prison sentence or other commitment" at the time he committed the second offense.

The appeals court rejected this argument, noting the next sentence of the statute, subsection (1)(b)(2)(b), provided for an enhanced sentence if the second felony was committed within five years of the first conviction.

The court declined to reach a second argument the defendant raised for the first time on appeal, that the guilty plea in 1995 was not a "conviction" for purposes of subsection (1)(b)(2)(b), but said if it had reached the issue it would reject that argument as well, because the statute treated a sentence of probation as a conviction for this purpose.

Affirmed.

D.M. V. STATE OF FLORIDA – WITHHELD ADJUDICATION OF DELINQUENCY; FELONY BATTERY; "GREAT BODILY HARM"

Appeal from a withheld adjudication of delinquency on a charge of felony battery, and probation.

In the course of an altercation on a school bus, the defendant, who was then 13 years old, punched another child in the face, knocking out a baby tooth. The victim did not seek medical attention, and the adult tooth later grew in without incident. The trial court denied defense motions to dismiss and for a judgment of acquittal, ruling that the loss of a baby tooth is "great bodily harm" for purposes of section 784.041 of the Florida statutes, defining felony battery.

The appeals court disagreed, and held that the state had not proved beyond a reasonable doubt that the defendant had caused "great bodily harm, permanent disability or permanent disfigurement," as required by the statute.

The appeals court affirmed the trial court's denial of the defense theory he had acted in self-defense.

Reversed and remanded for resentencing for simple misdemeanor battery.