Ortiz v. State
| Decision Date | 29 April 2016 |
| Docket Number | No. 2D13–5719.,2D13–5719. |
| Citation | 192 So.3d 517 |
| Parties | Pedro Antonio ORTIZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Dan Hallenberg, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.
WALLACE
, Judge.
Pedro Antonio Ortiz challenges his judgment and sentences for home invasion robbery, aggravated battery on a victim sixty-five years of age or older, and grand theft of a motor vehicle. On appeal, Mr. Ortiz raises three issues. First, he argues that the trial court failed to conduct Nelson1 and Faretta2 hearings as required. Second, Mr. Ortiz contends that prosecutorial misconduct during closing argument deprived him of a fair trial. Third, he argues that the trial court erred by instructing the jury on an uncharged theory of “the deadly weapon” version of the crime of aggravated battery. Mr. Ortiz's first two issues are without merit and do not warrant further discussion. We agree with Mr. Ortiz that the trial court committed error in instructing the jury on “the deadly weapon” version of the offense of aggravated battery that was not charged. Therefore, we affirm in part and reverse in part.
Section 784.045, Florida Statutes (2011)
, provides, in pertinent part, as follows:
Thus the offense of aggravated battery may be committed in two different and distinct ways: (1) by intentionally or knowingly causing great bodily harm, permanent disability, or permanent disfigurement, commonly referred to as “the great bodily harm” theory; and (2) by using a deadly weapon, commonly referred to as “the deadly weapon” theory. Where, as in this case, the victim of the aggravated battery is sixty-five years of age or older, the offense is reclassified from a felony of the second degree to a felony of the first degree. § 784.08(2)(a)
.
The State's amended information against Mr. Ortiz for aggravated battery alleged, in pertinent part as follows:
[T]hat Pedro Ortiz, in the County of Pasco, State of Florida, on the 9th day of August, in the year of our Lord, two thousand eleven, did intentionally or knowingly cause great bodily harm, permanent disability, or permanent disfigurement to [the victim], a person 65 years of age or older; contrary to Chapter 784.045/784.08(2)(a), Florida Statutes, and against the peace and dignity of the State of Florida.
(Emphasis added). Thus the State charged Mr. Ortiz under the great bodily harm theory of aggravated battery under section 784.045(1)(a)(1)
and omitted any reference to the deadly weapon theory under section 784.045(1)(a)(2).
The evidence at trial showed that the victim was seventy-seven years old on the date of the offense. When the attack began, the victim was home asleep in his bed. The assailant or assailants administered a savage beating to the victim on his head and hands with a metal yardstick. The unfortunate victim testified that when he was awakened it felt like he was being hit on the head with a hammer. Later, the victim was taken to a hospital for treatment. Ninety-one stitches were required to close the wounds
on his head. The victim also sustained a broken finger and lost several fingernails.
At the charge conference, the State's proposed instruction on the elements of aggravated battery authorized the jury to find Mr. Ortiz guilty upon a finding of either great bodily harm or the use of a deadly weapon. Defense counsel timely objected to the language in the proposed jury instruction referencing a deadly weapon, pointing out that “[i]t doesn't appear as though [the State] used [sic] the use of a deadly weapon in the [amended] Information.” The prosecutor would not agree to eliminate the reference in the proposed jury instruction to the use of a deadly weapon, and the trial court overruled defense counsel's objection.
The trial court instructed the jury on the elements of aggravated battery as follows:
Consistent with the jury instructions, the prosecutor told the jury in closing argument that they could find Mr. Ortiz guilty of aggravated battery based on the great bodily harm inflicted on the victim or based on the assailant's use of a deadly weapon, i.e., the metal yardstick. With regard to the deadly weapon theory, the prosecutor told the jury in his initial closing argument:
Used a deadly weapon. You'll be able to take this [the metal yardstick] back and feel it (indicating). We'll give you gloves. You can determine whether or not that this could be a deadly weapon or not. The State would contend yes. Someone could be killed with this. Someone was almost was [sic] was killed with this.
During the rebuttal portion of his closing argument, the prosecutor returned to the theme of the yardstick's use as a deadly weapon. He asked the jury to imagine what the yardstick could do when a person wielding it would stand over someone's head “hacking away.”
The verdict form presented to the jury on the aggravated battery charge did not differentiate between the alternative methods of committing aggravated battery. Instead, the verdict form provided only for a general verdict on the charge of aggravated battery on a person sixty-five years of age or older. The jury's other options as presented on the verdict form were aggravated battery, felony battery, battery on a person sixty-five years of age or older, battery, and not guilty. The jury returned a general verdict finding Mr. Ortiz guilty of aggravated battery on a person sixty-five years of age or older as charged in the information. The trial court adjudged Mr. Ortiz to be guilty in accordance with the jury's verdict and sentenced him on the aggravated battery charge as a prison releasee reoffender to a term of thirty years in prison.
The State properly concedes that the trial court erred in instructing the jury on an alternative theory of aggravated battery that was not charged in the information. See Jaimes v. State, 51 So.3d 445, 451 (Fla.2010)
; Sanders v. State, 959 So.2d 1232, 1234 (Fla. 2d DCA 2007) ; Reddick v. State, 56 So.3d 132, 133 (Fla. 5th DCA 2011). Nevertheless, the State argues that the error was harmless. The State observes that “the majority of [its] evidence pointed toward a great bodily injury theory of aggravated battery.” The State also directs our attention to the serious injuries sustained by the victim. Finally, the State points out that the jury's finding of guilty “as charged in the information” presumably means that the jury found Mr. Ortiz guilty on the great bodily harm theory of aggravated battery.
In assessing the State's harmless error argument, we may briefly consider the pertinent facts. There was substantial evidence in the record from which the jury could have concluded that the victim's assailant or assailants used the metal yardstick as a deadly weapon. Cf. Coronado v. State, 654 So.2d 1267, 1270 (Fla. 2d DCA 1995)
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