Merritt v. State
| Decision Date | 28 May 1998 |
| Docket Number | No. 90557,90557 |
| Citation | 712 So.2d 384 |
| Parties | 23 Fla. L. Weekly S286 Christopher MERRITT, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender, and Stephanie H. Park, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Petitioner.
Robert A. Butterworth, Attorney General, and Roberta J. Tylke, Assistant Attorney General, Daytona Beach, for Respondent.
We have for review Merritt v. State, 691 So.2d 62 (Fla. 5th DCA 1997), which certified conflict with Fredericks v. State, 675 So.2d 989 (Fla. 1st DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We quash the decision of the Fifth District Court of Appeal in this case and approve the decision of the First District Court of Appeal in Fredericks.
Christopher Merritt kicked at a police officer without making contact after the officer attempted to arrest Merritt for striking a woman. Merritt was charged with and convicted of, inter alia, attempted battery of a law enforcement officer. 1 The trial court denied Merritt's motion for a new trial, which was based on the ground that attempted battery of a law enforcement officer is a nonexistent felony.
On appeal, Merritt argued that the offense of attempted battery of a law enforcement officer does not exist. The Fifth District affirmed the conviction, reasoning that the general attempt statute, section 777.04, Florida Statutes (1995), applies to the offense of battery of a law enforcement officer. Merritt. The Fifth District certified conflict with the decision of the First District in Fredericks.
In Fredericks, the appellant was charged with aggravated assault of a law enforcement officer under section 784.07(2)(c), Florida Statutes (1995), after he raised a knife and took a step toward an officer who had responded to a 911 call involving a domestic disturbance. Fredericks, 675 So.2d at 990. The appellant was convicted of the lesser offense of attempted aggravated assault of a law enforcement officer. Id. at 989-90. The First District reversed and remanded for a new trial, holding that section 784.07(2), Florida Statutes (1995), which enhances the penalty for aggravated assault when it is inflicted on a law enforcement officer, does not specify an offense labeled attempted aggravated assault of a law enforcement officer, and therefore, the offense does not exist. Id. at 990.
Merritt argues here that the First District's reasoning in Fredericks applies to this case, and thus we should find that the absence of the offense of attempted battery of a law enforcement officer from the language of section 784.07(2) indicates that the offense does not exist. We agree that section 784.07(2), Florida Statutes (1995), does not include the offenses of attempted battery or attempted aggravated assault. Thus, neither attempted battery nor attempted aggravated assault can be reclassified based upon section 784.07(2).
Section 784.07, Florida Statutes (1995), is an enhancement statute rather than a statute creating and defining any criminal offense. The plain language of the statute indicates that the legislature enacted section 784.07 in order to increase the penalties for the enumerated crimes of assault, aggravated assault, battery, and aggravated battery for offenders who commit these crimes upon law enforcement officers. At the time the enhancement statute was enacted, the legislature had created the four enumerated offenses in other statutory provisions. 2 The enhancement statute contains no enhancement or reclassification of penalties for the offense of attempted commission of the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses. See Fredericks, 675 So.2d at 990. This conclusion is in accord with our decision in State v. Crumley, 512 So.2d 183 (Fla.1987). In Crumley, we approved in a double-jeopardy context the First District's construction of section 784.07 that "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." Crumley v. State, 489 So.2d 112, 114 (Fla. 1st DCA 1986).
Accordingly, we quash Merritt and approve Fredericks to the extent that it is consistent with this opinion. In this case, Merritt was convicted of violating section 777.04, Florida Statutes (1995) (attempt), and section 784.03(1), Florida Statutes (1995) (battery). Therefore, we remand with directions that Merritt be resentenced for the offense of attempted battery without felony reclassification based upon section 784.07(2)(b), Florida Statutes (1995) ().
It is so ordered.
1 Merritt was convicted pursuant to: section 777.04, Florida...
To continue reading
Request your trial
-
State v. Barnum
...or a sentencing enhancement. See Thompson, 695 So.2d at 693. Contrary to the State's position, this Court's decisions in Merritt v. State, 712 So.2d 384 (Fla.1998), and Mills v. State, 822 So.2d 1284 (Fla.2002), did not modify the Thompson holding, and the decision in Thompson remains valid......
-
Ramroop v. State
...under the statute, we need not reach this question to resolve the issue here.” Thompson, 695 So.2d at 693.Subsequently, in Merritt v. State, 712 So.2d 384 (Fla.1998), the court stated that “[s]ection 784.07, Florida Statutes (1995), is an enhancement statute rather than a statute creating a......
-
Ramroop v. State
...who commit these crimes upon law enforcement officer." Darst v. State , 816 So.2d 680, 682 (Fla. 5th DCA 2002) (quoting Merritt v. State , 712 So.2d 384, 385 (Fla. 1998) ). However, the Fifth District acknowledged that " section 784.07(c) could also be interpreted as creating a substantive ......
-
Mills v. State
...felony offender1 sentence violated double jeopardy, the majority declined to find controlling this Court's statement in Merritt v. State, 712 So.2d 384, 385 (Fla. 1998), that the statute for battery on a law enforcement officer is an enhancement statute, classifying such as "dicta." The dis......
-
Crimes
...assault, and aggravated assault on LEOs. The statute contains no enhancement of attempts to commit those crimes. Merritt v. State, 712 So. 2d 384 (Fla. 1998) First District Court of Appeal Under §924.34, when the appellate court finds that the evidence does not establish all the elements of......
-
Legal developments impacting repeat battery offenders: Warren and the 2001 amendment to felony battery.
...of battery in Warren will now be affected by the statutory amendment. If the Florida Supreme Court's decision in Merritt v. State, 712 So. 2d 384 (Fla. 1998L carries any weight here, batteries on law enforcement officers under [section] 784.07 should be included as predicate convictions wit......