Fredericks v. State, 95-1024
| Decision Date | 11 June 1996 |
| Docket Number | No. 95-1024,95-1024 |
| Citation | 675 So.2d 989 |
| Parties | 21 Fla. L. Weekly D1368 Keith FREDERICKS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy Daniels, Public Defender; Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; William J. Bakstran, Assistant Attorney General, for Appellee.
This is an appeal from a judgment of conviction, after a jury trial, of the offense of attempted aggravated assault on a law enforcement officer. The issues presented are: 1) whether the offense of which appellant was convicted is a valid offense under the law of Florida; and 2) whether the trial court erred in admitting testimony by police officers of their training and practice concerning their defense against knife-wielding suspects. We find that reversal is required as to the first issue.
Appellant was charged in a two-count information with the offense of aggravated assault on a law enforcement officer, and the offense of battery. Both offenses arose out of an occurrence in which police responded to a "911" telephone call involving a domestic disturbance in which appellant allegedly committed a battery against his spouse. Upon arriving at the scene, an incident occurred in which appellant allegedly raised a knife, faced one of the officers, and took a step toward him. All three officers present drew their firearms, but appellant was then abruptly tackled and physically subdued by one of the officers without any shots being fired. Over a defense objection, the state was allowed to present testimony from all three officers concerning their training in confronting a person wielding a knife. The substance of the testimony had to do with the recommended response by an officer when the knife-wielder is at a distance of 21 feet or less from the officer. Because of the danger presented from a possible assailant at this distance, officers are apparently taught to respond with deadly force. The state argues that this evidence was relevant to prove an element of the offense charged, namely, that the officer assaulted by appellant had a well-founded fear of imminent violence. We are of the view that the question of relevancy of such evidence, while somewhat tenuous under these facts, was a matter for determination by the trial judge, and we find no abuse of discretion in the admissibility of this testimony.
Conviction of a non-existent crime is fundamental error mandating reversal even when the error was invited by the defendant, as was the case here, by request for a jury instruction on a non-existent offense. Achin v. State, 436 So.2d 30 (Fla.1982). We agree with appellant's argument in the case before us that the offense of attempted aggravated assault on a law enforcement officer does not exist. Section 784.07, Florida Statutes (1993) reclassifies certain enumerated offenses and enhances the penalties for those offenses when the victim is a law enforcement officer. By its terms, the statute does not reclassify or enhance the penalty for the offense of attempted commission of the enumerated offenses. As explained by this court in Crumley v. State, 489 So.2d 112, 114 (Fla. 1st DCA 1986), approved, State v. Crumley, 512 So.2d 183 (Fla.1987), "by enacting the enhancement statute, section 784.07, the legislature merely provided for a felony punishment when the victim [of one of the enumerated offenses] ... is a law enforcement officer." Thus, because the statute does not include the offense of attempted aggravated assault among the enumerated offenses to be enhanced when...
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State v. Klayman
...error can be raised for the first time on appeal because the crime of which he was convicted does not exist."); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996) ("Conviction of a non-existent crime is fundamental error mandating reversal even when the error was invited by the def......
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Jordan v. State, 5D01-1177.
...may never be convicted of a nonexistent crime...."); Harkness v. State, 771 So.2d 588 (Fla. 1st DCA 2000); Mundell; Fredericks v. State, 675 So.2d 989 (Fla. 1st DCA 1996), approved, Merritt v. State, 712 So.2d 384 (Fla.1998); Williams v. State, 516 So.2d 975 (Fla. 5th DCA 1987). Therefore, ......
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Johnson v. State, 02-1127.
...trial judge was justified in refusing a requested jury instruction because it did not accurately state the law); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996)(ruling that "[c]onviction of a non-existent crime is fundamental error mandating reversal even when the error was invi......
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...attempted aggravated assault should have been submitted to the jury as a necessarily lesser included offense. See Fredericks v. State, 675 So.2d 989 (Fla. 1st DCA 1996); Hall v. State, 354 So.2d 914 (Fla. 2d DCA 1978). Although the jury was instructed on discharging a firearm in public and ......