Abbott v. State, 96-3103

Citation705 So.2d 923
Decision Date24 December 1997
Docket NumberNo. 96-3103,96-3103
Parties23 Fla. L. Weekly D54 Joseph ABBOTT, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Richard L. Jorandby, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

This appeal arises from the trial court's jury instructions during appellant's trial for aggravated assault with a deadly weapon, and appellant's penalty enhancement under section 775.085, Florida Statutes (1995), based on appellant's use of derogatory racial slurs during the commission of the crime. The trial court instructed the jury that it could convict if it determined that "in committing an aggravated assault, [the defendant] evidenced prejudice based on race or color." Because the statute applies only to bias-motivated crimes under State v. Stalder, 630 So.2d 1072 (Fla.1994), the jury's finding that the defendant was guilty of a crime "evidencing racial prejudice" was insufficient to increase appellant's penalty under section 775.085. We therefore affirm the conviction but reverse for appellant to be resentenced for aggravated assault with a deadly weapon without the enhancement.

In Stalder, the supreme court held that the statute applied to crimes where the perpetrator intentionally selects the victim because of the victim's race, color, ethnicity, religion or national origin. It contrasted bias-motivated crimes with bias-motivated expression as follows:

First are those offenses committed because of prejudice. For instance, A beats B because B is a member of a particular racial group.... The targeted activity--the selection of a victim--is an integral part of the underlying crime. As such, the conduct is not protected speech at all, but rather falls outside the First Amendment and may be banned.

Second are those offenses committed for some reason other than prejudice but that nevertheless show bias in their commission. For example, A beats B because of jealousy, but in the course of the battery calls B a racially derogatory term. The targeted conduct here--the expression of bias--is related to the underlying crime in only the most tangential way: The expression and crime share the same temporal framework, nothing more. This tenuous nexus, which amounts to mere temporal coincidence, is irrelevant for constitutional purposes. The proscribed conduct consists of pure expression ... and cannot be selectively banned.

Id. at 1076. The third district, in applying the principles of Stalder, has held that a defendant demonstrates reversible error when the trial court refuses to instruct the jury that prejudicial intent was an essential element of the hate-crime penalty enhancement. See Richards v. State, 643 So.2d 89 (Fla. 3d DCA 1994). The court stated:

The defense-requested jury instruction would have informed that jury that in order to establish the hate-crime enhancement allegations of the information, the state was required to prove that the defendant had a prejudicial intent--that is, that he was motivated by racial or national origin prejudice against the crime victims--in committing the crimes for which he was charged.

Id. at 91 (emphasis added).

In the instant case, the trial court instructed the jury as follows:

Now, the first element would be that Mr. Abbott intentionally and unlawfully threatened, by either words or an act, to do violence to Mr. Pope.

That, second, at the time Mr. Abbott appeared to have the ability to carry out the threat.

Third, that the act of Mr. Abbott created in the mind of Mr. Pope a well-founded fear that violence was about to take place.

And fourth, that the assault was made with a deadly weapon, that being the alleged, it's a box cutter and/or razor blade.

And fifth, that the Defendant, Mr. Abbott, in committing an aggravated assault, evidenced prejudiced [sic] based on race or color.

Under these instructions the jury could have convicted the appellant for merely uttering a derogatory term during the commission of the crime, the second category of offense which the supreme court determined as the expression of bias rather than bias-motivated. Indeed, that is how the state argued the case to the jury. It invited the jury to convict the appellant because he was yelling racial slurs while pointing a knife at the victim. That is precisely the type of conduct which Stalder held did not constitute a constitutional application of the statute.

We do not agree with the appellant that this error entitles him to a new trial. As Judge Danahy pointed out in Woolfork v. State, 623 So.2d 823 (Fla. 2d DCA 1993), the use of the term "hate-crime," with reference to this statute, is a misnomer. The statute provides for...

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3 cases
  • Freudenberger v. State
    • United States
    • Florida District Court of Appeals
    • 27 d5 Outubro d5 2006
    ...District has found a similar jury verdict to be insufficient to support an enhancement under section 775.085. See Abbott v. State, 705 So.2d 923, 925 (Fla. 4th DCA 1997).5 The language of the information and of the jury verdict in Woolfork is very similar to the language used in the informa......
  • Major v. State
    • United States
    • Florida District Court of Appeals
    • 16 d3 Junho d3 2004
    ...costs on a defendant where the state did not request the costs and there is no documentation to support the award. See Abbott v. State, 705 So.2d 923 (Fla. 4th DCA 1997). Thus, because this record lacks either a request by the state or any supporting documentation, we strike these costs fro......
  • Martin v. State
    • United States
    • Florida District Court of Appeals
    • 4 d3 Novembro d3 1998
    ...necessary to convict, the trial court charged the jury with a jury instruction similar to the one we disapproved in Abbott v. State, 705 So.2d 923, 924-25 (Fla. 4th DCA 1997). Based on Abbott, we reverse. However, this insufficiency does not require our granting a new trial to appellant who......

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