Mordica v. State
| Decision Date | 03 May 1993 |
| Docket Number | No. 91-2782,91-2782 |
| Citation | 618 So.2d 301 |
| Parties | 18 Fla. L. Week. D1168 Gary MORDICA, Appellant, v. STATE of Florida, Appellee. First District |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Lynn A. Williams, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.
Gary Mordica appeals the judgment of conviction and sentence in circuit court case number 91-1160 based on the verdict of guilty of battery of a law enforcement officer. He also appeals an order revoking his probation in circuit court case number 90-3150 based on several violations of the conditions of his probation. We reverse the order revoking probation in case number 90-3150 because the revocation was based in part on an offense not charged in the affidavit of violation of probation. We also reverse the conviction of battery of a law enforcement officer in case number 91-1160 and remand for entry of judgment of guilty of simple battery for the following reasons.
Mordica filed a motion to dismiss the information charging him with battery of a law enforcement officer pursuant to section 784.07, Florida Statutes (1989), alleging:
1. On April 2, 1991, a fight ensued between inmates Jonathan McNeal, Petey Milton, and Gary Mordica (defendant). Correctional Officers, David Knight, Edward Cook, Thomas Stege and Scott Sullivan responded to cell block 2A to break up the fight. Upon arriving the defendant was observed striking Petey Milton. Officer Sullivan took custody and control of inmate Milton. At that point, the defendant kicked Milton in the head. Officer Sullivan also [sic] hit in the nose, while standing behind inmate Milton.
2. It is the defendant's position that his behavior above related does not constitute the crime of battery on a law enforcement officer, as that crime is defined by ss. 784.07(2)(b), Florida Statutes.
After hearing, the motion was denied and the case went to trial before a jury.
At the conclusion of the state's case and at the close of all evidence, Mordica moved for judgment of acquittal on grounds, among others, that the doctrine of transferred intent relied on by the state to prove an intentional hitting of the officer was not applicable in this case for the reason that, although both the intended victim and the officer were struck with the same blow, Mordica only intended to strike the inmate and not the officer. The court denied the motions. At the charge conference, Mordica's objection to the state's requested instruction on the doctrine of transferred intent was overruled and the jury was so instructed. The jury returned a verdict of guilty as charged, and the court entered judgment in accordance with the verdict.
Mordica raises two issues focusing on the applicability of the doctrine of transferred intent in this case. He argues that: (1) the court erred in denying the motion to dismiss and motions for judgment of acquittal because, absent a correct application of the doctrine of transferred intent, which he contends does not apply to facts of this case, the state failed to establish the required element of intent to support the charge of battery of a law enforcement officer; and (2) the court erred in instructing the jury on the doctrine of transferred intent, over defense objection, since the doctrine does not apply to the facts of this case. Mordica contends that, as traditionally construed, the doctrine applies only where the intended victim is fortuitously spared the intended conduct and an unintended victim inadvertently receives the defendant's intended conduct (that is, that the defendant entirely misses the intended victim and hits an unintended victim), and the doctrine clearly limits the defendant's culpability to the defendant's intended conduct. Also, Mordica argues, this legal fiction cannot be used to enhance the existing intent to commit the misdemeanor of simple battery against the inmate to an intent to commit the felony of battery on a law enforcement officer, because only the "original malice" toward the intended victim is transferred under the doctrine.
The state contends that to prove the enhanced offense of battery of a law enforcement officer it does not have to show that Mordica intended to strike the officer, but only show that Mordica intended to strike the inmate and that Mordica knew that Officer Sullivan was a law enforcement officer. Then, the state argues, when the doctrine of transferred intent is applied, Mordica's intent to strike the inmate is transferred to the officer.
We reject Mordica's contention that the doctrine of transferred intent is applicable only where the defendant entirely misses the intended victim and hits the unintended victim. The doctrine may be applied in this case even though Appellant kicked the inmate, the intended victim, and in the process inadvertently kicked the officer without intending to do so. See Edler v. State, 616 So.2d 546 (Fla. 1st DCA 1993) (). See also United States v. Sampol, 636 F.2d 621, 674 (D.C.Cir.1980) (). However, Mordica's conviction of the charged offense must be reversed because (1) battery of a law enforcement officer is a specific intent crime requiring proof of intent to knowingly hit a law enforcement officer, and (2) the critical intent transferred by the doctrine is only that directed toward the intended victim (the inmate), not the unintended victim (the law enforcement officer).
The elements of the offense of battery of a law enforcement officer defined in section 784.07, Florida Statutes (1989), 1 are "1) knowingly 2) actually 3) intentionally 4) touching or striking 5) against the will 6) of a law enforcement officer 7) engaged in the lawful performance of his duties." State v. Henriquez, 485 So.2d 414, 415 (Fla.1986). The offense is a specific intent crime because it is
"an act ... accompanied by some intent other than the intent to do the act itself or the intent (or presumed intent) to cause the natural and necessary consequences of the act." Linehan [v. State ] [442 So.2d 244] at 247. It is "a crime encompassing a requirement of a subjective intent to accomplish a statutorily prohibited result," Linehan at 248, to wit, not simply battery but battery on a law enforcement officer. The battery on a law enforcement officer statute, section 784.07, Florida Statutes (1983), requires that the perpetrator knowingly commit the offense on a law enforcement officer.
Evans v. State, 452 So.2d 1093, 1094 (Fla. 2d DCA 1984). Thus, simple battery under section 784.03, Florida Statutes (1989), is a necessarily lesser included offense of battery of a law enforcement officer. Brown v. State, 608 So.2d 114 (Fla. 1st DCA 1992).
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