Selley v. State, s. 78-115
| Decision Date | 28 May 1980 |
| Docket Number | Nos. 78-115,s. 78-115 |
| Parties | Wilbur Webb SELLEY, Appellant, v. STATE of Florida, Appellee. /T4-44, 78-394/T4-44A. |
| Court | Florida District Court of Appeals |
Richard S. Rhodes, Orlando, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.
These are consolidated appeals in which appellant appeals his conviction after a jury trial of battery on a law enforcement officer and a separate conviction of violation of a prior probation order. We affirm both convictions. Appellant raises six points on appeal, but only one merits discussion.
The information by which appellant was charged with the crime of battery on a law enforcement officer stated, in pertinent part:
. . . WILBUR WEBB SELLEY on the 26th day of August, 1977 . . . did, in violation of Florida Statutes 784.03 and 784.07, knowingly commit a battery upon a law enforcement officer, JOHN MOBILIO, a deputy sheriff of Orange County, Florida, and in furtherance thereof did actually and intentionally strike the said JOHN MOBILIO with his hands while the said officer was engaged in the lawful performance of his duties.
Prior to trial, appellant filed a motion to dismiss alleging that the information failed to charge a violation of any law of the State of Florida. Other grounds for the motion were directed to the constitutionality of the applicable statutes, but these grounds have not been argued on appeal. The motion to dismiss was denied.
Appellant now contends that the information is defective because it does not allege an essential element of battery, i. e., that the touching or striking was against the will of the victim. To charge battery on a law enforcement officer under section 784.07(2) (1977), an information must not only allege the essential elements of that crime, but must also allege the elements of a simple battery, Ferrell v. State, 358 So.2d 843 (Fla. 3d DCA 1978), and one of those elements of the crime is that the touching or striking was against the will of the victim. 1
But a defect in the form of the information does not necessarily require dismissal unless it appears that the information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. 2 Thus it has been often held that when an information omits an element of the crime charged and no motion to dismiss is filed specifically directed to the alleged defect, such omission is waived unless the information wholly fails to charge a crime. Sinclair v. State, Fla.1950, 46 So.2d 453; Tracey v. State, ...
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