Cox v. State, 87-2186

• Decision Date: 01 September 1988
• Docket Number: No. 87-2186,87-2186
• Citation: 530 So.2d 464,13 Fla. L. Weekly 2037
• Parties: 13 Fla. L. Weekly 2037 Willie James COX, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 464

530 So.2d 464

13 Fla. L. Weekly 2037

Willie James COX, Appellant, v. STATE of Florida, Appellee.

No. 87-2186.

District Court of Appeal of Florida,

Fifth District.

Sept. 1, 1988.

Thomas W. Turner, Orlando, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Pamela D. Cichon, Asst. Atty. Gen., Daytona Beach, for appellee.

DANIEL, Judge.

Willie Cox appeals his convictions and sentences for two counts of assault, possession of a firearm in the commission of a felony, two counts of battery on a law enforcement officer and two counts of resisting an officer with violence. On appeal, Cox contends that the trial court erred in enhancing his sentences and imposing the mandatory minimum sentences for the two counts of battery on a law enforcement officer. We agree.

Cox was charged by amended information with two counts of aggravated assault with a deadly weapon, possession of a firearm in the commission of a felony, two counts of battery on a law enforcement officer, two counts of resisting an officer with violence and two counts of carrying a concealed firearm. Count four of the amended information charged that "Cox, on the 3rd day of March, 1987, in said county and state, did, in violation of Florida Statutes 784.03 and 784.07, knowingly commit a battery upon a law enforcement officer, Jan A. Fetzer, a police officer for the City of Orlando, and in furtherance thereof, did actually and intentionally touch or strike Jan A. Fetzer, against the will of the said Jan A. Fetzer, while said officer was engaged in the lawful performance of his duties." Count five charged a battery on Officer Pedersen in the same language.

At trial, Officers Pedersen and Fetzer both testified that Cox had possession of Officer Fetzer's gun and pointed it at Officer Fetzer while struggling with the officers after they tried to arrest him. Both officers testified that they were struck and injured by Cox. The verdict forms for counts four and five provided as follows:

______ WE, THE JURY, FIND DEFENDANT GUILTY OF BATTERY ON A LAW ENFORCEMENT OFFICER WITH A FIREARM, AS CHARGED IN THE INFORMATION

______ WE, THE JURY, FIND DEFENDANT GUILTY OF A LESSER INCLUDED OFFENSE, BATTERY

______ WE, THE JURY, FIND DEFENDANT NOT GUILTY

The jury found Cox guilty of "battery on a law enforcement officer with a firearm, as charged in the information." Cox was adjudicated guilty and the offenses were reclassified from third degree felonies to second degree felonies and the three-year mandatory minimum sentence was imposed because of the use of a firearm in the commission of the offenses. On appeal, Cox argues that the trial court erred in enhancing the battery charges from third to second degree felonies and in imposing the mandatory minimum sentence because he was not charged with the possession of a firearm under the battery counts in the amended information. Cox admits that defense counsel did not raise these matters below but argues that they constitute fundamental errors.

Cox is correct. In Cochenet v. State, 445 So.2d 398 (Fla. 5th DCA 1984), Cochenet was charged with entering or remaining in a dwelling with the intent to commit an offense therein, aggravated assault. Cochenet was convicted of first degree burglary. On appeal, this court reversed his conviction explaining as follows:

Section 810.02(2)(a), Florida Statutes (1981), provides for enhancement of burglary to a felony of the first degree if, in the course of committing the offense, the offender makes an assault upon any person. As the appellant argues in his brief, the amended information charged Cochenet entered the trailer with the intent to commit aggravated assault; it did not allege that the assault actually occurred. Although the fact of the assault is clearly alleged in another count, that count cannot be used to supply an added element for count one. Averheart v. State, 358 So.2d 609 (Fla. 1st DCA 1978). The conviction should therefore have been for a second-degree felony rather than a first-degree felony. Although the appellant failed to object to this error at the time of entry of judgment, the error is fundamental and may be raised for the first time on appeal. This is so because the offense for which Cochenet was convicted is greater in degree and penalty that the offense with which he was charged. (emphasis in original) 445 So.2d at 399. The entry of judgment of conviction against Cochenet under this count for a first-degree felony was reversed and the cause was remanded for the entry of judgment for a second-degree felony pursuant to section 810.02(3), Florida Statutes.

In Colwell v. State, 448 So.2d 540 (Fla. 5th DCA 1984), Colwell was convicted of first-degree burglary and sexual battery. On appeal, this court agreed with Colwell that the information was insufficient to charge first-degree burglary:

The first point on appeal asserts that the information charging the burglary was insufficiently alleged to support a life sentence as a felony of the first degree. § 810.02, Fla.Stat. (1978); § 775.082, Fla.Stat. (1978). We agree the information is deficient; it merely alleges burglary of an occupied dwelling, which is a felony of the second degree punishable by no...