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Johnson v. State

District Court of Appeal of Florida, Third District
Sep 3, 2003
858 So. 2d 1071 (Fla. Dist. Ct. App. 2003)
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Summary

holding that spitting on police officer constitutes unwanted touching and thus battery under § 784.03 but is not a "use or threat of use of physical force or violence"

Summary of this case from U.S. v. Luque-Barahona
See 8 Summaries

Opinion

Case No. 3D01-2021.

Opinion filed September 3, 2003. Rehearing and Rehearing En Banc Denied November 7, 2003.

An appeal from the Circuit Court of Miami-Dade County, Victoria Sigler, Judge. Lower Tribunal Case No. 00-19788.

Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Senior Assistant Attorney General, and Joseph A. Brophy, Certified Legal Intern, for appellee.

Before GODERICH, GREEN, and FLETCHER, JJ.

ON MOTION FOR REHEARING GRANTED

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The opinion filed November 6, 2002 is withdrawn, and the following is substituted in its place.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. Battery is a qualifying offense where the defendant struck or intentionally caused bodily harm to another person. § 784.03(1)(a)1, 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.

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(1)(d)(1)a-g, (2),(3), Fla. Stat. (2001).

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.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

Summaries of

Johnson v. State

District Court of Appeal of Florida, Third District
Sep 3, 2003
858 So. 2d 1071 (Fla. Dist. Ct. App. 2003)

holding that spitting on police officer constitutes unwanted touching and thus battery under § 784.03 but is not a "use or threat of use of physical force or violence"

Summary of this case from U.S. v. Luque-Barahona

holding that just because spitting on someone certainly "amounts to an unwanted touching, it does not amount to the use or threat of use of physical force or violence."

Summary of this case from U.S. v. Gonzalez-Chavez

holding mere spitting on police officer can constitute battery on a law enforcement officer but is not an offense that involves the use or threat of physical force or violence and is thus not a forcible felony under the VCC statute

Summary of this case from Santiago v. State

holding that Johnson's conviction for battery by spitting on an LEO was not a qualifying offense under the violent-career-criminal provision, section 775.084(d), Florida Statutes, because even though spitting is an unwanted touching, and thus a battery under section 784.03, spitting is not a forcible felony involving "the use or threat of use of physical force or violence" under section 776.08

Summary of this case from Jenkins v. State

holding that spitting on a law enforcement officer is not a current qualifying offense for sentencing as a violent career criminal

Summary of this case from Trapp v. State

holding that Johnson's conviction for battery by spitting on an LEO was not a qualifying offense under the violent-career-criminal provision, section 775.084(d), Florida Statutes, because even though spitting is an unwanted touching, and thus a battery under section 784.03, spitting is not a forcible felony involving "the use or threat of use of physical force or violence" under section 776.08

Summary of this case from Jenkins v. State

examining whether battery conviction for spitting on a law enforcement officer was a qualifying offense for sentencing as a violent career criminal and, interestingly, taking no issue with the underlying battery conviction

Summary of this case from Hobbs v. State, 127 Nev. Adv. Op. No. 18, 54933 (2011)

In Johnson v. State, 858 So.2d 1071, 1072 (Fla. 3d DCA 2003) (on rehearing), this Court found that spitting on a law enforcement officer does not amount to "the use or threat of use of physical force or violence".

Summary of this case from Acosta v. State
Case details for

Johnson v. State

Case Details

Full title:ROBERT JOHNSON, Appellant, v. THE STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Third District

Date published: Sep 3, 2003

Citations

858 So. 2d 1071 (Fla. Dist. Ct. App. 2003)

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See FLA. STAT. § 784.03(1)(a); State v. Hearns, 961 So.2d 211, 215 (Fla. 2007); Johnson v. State, 858 So.2d…

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