Henriquez v. State, 83-2365

• Decision Date: 28 December 1984
• Docket Number: No. 83-2365,83-2365
• Citation: Henriquez v. State, 463 So.2d 1178, 10 Fla. L. Weekly 103 (Fla. App. 1984)
• Parties: 10 Fla. L. Weekly 103 Keith HENRIQUEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1178

463 So.2d 1178

10 Fla. L. Weekly 103

Keith HENRIQUEZ, Appellant, v. STATE of Florida, Appellee.

No. 83-2365.

District Court of Appeal of Florida Fourth District.

Dec. 28, 1984.

Rehearing Denied March 13, 1985.

Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.

DELL, Judge.

Keith Henriquez appeals from convictions of battery on a law enforcement officer, resisting arrest with violence, failure to exhibit a driver's license, and reckless driving.

Two police officers responded to a call at appellant's home. Just after they arrived, appellant drove up with his lights off and with questionable control of his car. When one of the officers asked appellant for his driver's license, appellant pushed him out of the way and moved towards his house. The officer attempted to stop him and they struggled. The fight went from outside to inside the house. The officer eventually subdued appellant. The State charged appellant by information with battery on a law enforcement officer, resisting arrest with violence, failure to exhibit a driver's license, and reckless driving. Count I of the information alleged that appellant "did actually and intentionally touch or strike the said law enforcement officer against his will" and Count II alleged that appellant resisted by, "offering or doing violence to the person of the said officer, to wit: pushing, and striking said officer ...." Appellant unsuccessfully sought a dismissal on the ground that Counts I and II violated his double jeopardy rights. The jury returned a verdict of guilty on all counts. The court withheld adjudication and placed appellant on probation for three years. As a condition of probation, the court ordered appellant to "pay up to $100 restitution as determined by probation officer."

Appellant contends that his convictions of both battery and resisting arrest with violence violate his double jeopardy rights and that the trial court improperly delegated authority to a probation supervisor to determine the amount of restitution.

In Portee v. State, 447 So.2d 219 (Fla.1984), our supreme court explained that:

If two statutory offenses have the exact, same essential constituent elements, or when one statutory offense includes all of the elements of the other, those two offenses are constitutionally "the same offense" and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events. If it is established that an offense is a lesser included offense of a greater offense also charged, the double jeopardy clause proscribes multiple convictions and sentences for both the greater and lesser included offenses. Bell v. State, 437 So.2d 1057 (Fla.1983) (holding that sale and possession of controlled substances were lesser included offenses of trafficking in illegal drugs).

Id. at 220.

Our supreme court uses the Blockburger test to identify lesser included offenses:

A less serious offense is included in a more serious one if all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter. If each offense requires proof of an element that the other does not, the offenses are separate and discrete and one is not included in the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Borges v. State, 415 So.2d 1265, 1267 (Fla.1982).

We have compared the statutory elements of assault or battery of a law enforcement officer, Sections 784.011, 784.03 and 784.07, Florida Statutes (1983), with those of resisting an officer with violence to his person, Section 843.01, Florida Statutes (1983). All of the elements contained in Section 843.01 must be proved, along with more, in order to sustain a conviction under Section 784.07. ¹ The information alleges that appellant resisted the law enforcement officer by pushing or striking him, and battered him by touching or striking him. The State relied upon evidence of a single, continuous incident to prove the allegations of both counts. Therefore we hold that the resisting arrest with violence charged herein constituted a lesser included offense of battery of a law enforcement officer.

We also find merit in appellant's argument that the trial court erred when it delegated authority to a probation supervisor to determine the amount of restitution. In Cada v. State, 382 So.2d 405 (Fla. 4th DCA 1980), we held:

It is improper for the trial judge to delegate to the probation supervisor the authority to determine the amount of restitution appellant must pay. Fresneda v. State, 347 So.2d 1021 (Fla.1977); ....

Id. at 406.

Accordingly, we affirm appellant's convictions under Counts I, III and IV of the information and reverse and remand this cause to the trial court with directions to vacate appellant's conviction of...