Narvaez v. State

• Decision Date: 05 January 2022
• Docket Number: 4D20-245
• Court: Florida District Court of Appeals
• Parties: ALBERT NARVAEZ, Appellant, v. STATE OF FLORIDA, Appellee.

ALBERT NARVAEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D20-245

Florida Court of Appeals, Fourth District

January 5, 2022

Not final until disposition of timely filed motion for rehearing.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Alspector, Judge; L.T. Case No. 18011191CF10A.

Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and MaryEllen M. Farrell, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

Appellant Albert Narvaez appeals his conviction and sentence for attempted first-degree murder, aggravated assault with a deadly weapon, false imprisonment, discharging a firearm from a vehicle, and "Battery (Domestic)." He raises three issues on appeal; however, we find merit in only one: whether the trial court erred in sentencing appellant on the battery charge as described in the amended information. We reverse for resentencing on that issue but affirm all others without comment.

The jury received the jury instruction for the "Battery (Domestic)" charge titled "Battery F.S. 784.03," referring to the general battery statute. The instruction stated, "[t]o prove the crime of Battery, the State must prove the following element beyond a reasonable doubt: [appellant] actually and intentionally touched or struck [the victim] against her will." Neither party objected to the final jury instructions. The jury found Appellant guilty on all counts, including "Battery (Domestic)."

At sentencing, the trial court treated the battery conviction as a crime of domestic violence and sentenced appellant to 364 days in jail with credit

1

for time served. Appellant moved to correct his sentence under Florida Rule of Criminal Procedure 3.800(b)(2), arguing that "Battery (Domestic)" was a nonexistent crime and that the jury did not have the proper jury instruction. When the trial court did not enter an order on this motion within sixty days, this appeal followed. See Fla. R. Crim. P. 3.800(b)(2)(B).

A motion to correct a sentencing error is reviewed de novo because it "involves a pure issue of law." Brooks v. State, 199 So.3d 974, 976 (Fla. 4th DCA 2016) (quoting Smith v. State, 143 So.3d 1023, 1024 (Fla. 4th DCA 2014)).

A first-time offender can be convicted of a first-degree misdemeanor for committing battery. See § 784.03(1)(b), Fla. Stat...