State v. Nelson
| Citation | 577 So.2d 971,16 Fla. L. Weekly 801 |
| Decision Date | 27 March 1991 |
| Docket Number | No. 90-1349,90-1349 |
| Parties | 16 Fla. L. Weekly 801 STATE of Florida, Appellant, v. Wayne NELSON, Appellee. |
| Court | Court of Appeal of Florida (US) |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellant.
No brief filed by appellee.
Involved here is the recently enacted statute enhancing the penalties for assaulting or battering a person sixty-five years old or older. The trial judge dismissed the charge because the information failed to state that the aggravated battery was carried out "knowingly." We reluctantly affirm.
Section 784.08(2), Florida Statutes (1989), provides in part:
Whenever a person is charged with knowingly committing an assault or aggravated assault or a battery upon a person 65 years of age or older, the offense for which the person is charged shall be reclassified as follows:
(Emphasis added).
We have tried to construe the foregoing statutory language to apply the "knowingly" only to the crimes of assault and battery, thus dispensing with the necessity of knowing the age of the victim. However, the wording of the statute will not permit such a construction 1 even though it is doubtful that the legislature intended that the state would have to prove that the criminal knew the victim was at least sixty-five years old before the enhanced penalty could be invoked. Moreover, it is hardly likely the attacker would ever know his victim was at least sixty-five. Obviously, the statute was enacted to protect the elderly, not the criminals, the theory behind the statute being that he or she who assaults elderly people does so at his or her peril. In the same vein, he or she who rapes a child under twelve does not have to know that the child is of such tender years. Sec. 794.011(2), Florida Statutes (1989). Likewise, he or she who sells drugs within one thousand feet of a school does not have to know that he or she is within that radius. State v. Burch, 545 So.2d 279 (Fla. 4th DCA 1989), aff'd, 558 So.2d 1 (Fla.1990).
By further analogy, we have considered the statute applicable to assault and battery upon law enforcement officers or firefighters. That statute, section 784.07(2), Florida Statutes (1989), states in part:
Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer, a firefighter, an intake officer as defined in Sec. 39.01, or a parking enforcement specialist as defined in Sec. 316.640, while the officer, firefighter, intake officer, or parking enforcement specialist is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:
(Emphasis added).
Once more, the word "knowingly" is employed and in this context has been interpreted by our supreme court as requiring "that the accused know that his victim is a law enforcement officer or a firefighter." Street v. State, 383 So.2d 900, 901 (Fla.1980).
In the case of policemen and firefighters, the requirement of having to know makes sense. Police are usually in uniform and firefighters attired in classic garb that unmistakably puts the attacker in...
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Hamrick v. State, 94-0859
...that he or she is battering a person 65 or older." Cochran v. State, 622 So.2d 166, 167 (Fla. 2d DCA 1993); see also State v. Nelson, 577 So.2d 971 (Fla. 4th DCA 1991). Thus, an even stronger argument against a double jeopardy violation can be made in this case since knowledge of the victim......
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Smith v. State
...2d DCA 1993); Gordon v. State, 603 So.2d 512 (Fla. 1st DCA 1992); Bryant v. State, 599 So.2d 1349 (Fla. 1st DCA 1992); State v. Nelson, 577 So.2d 971 (Fla. 4th DCA 1991). In so holding, we recognize that since Smith's commission of this offense, this statute has been amended by the legislat......
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Cochran v. State
...or older. See Gordon v. State, 603 So.2d 512 (Fla. 1st DCA 1992); Bryant v. State, 599 So.2d 1349 (Fla. 1st DCA 1992); State v. Nelson, 577 So.2d 971 (Fla. 4th DCA 1991). Although the statute has been amended to eliminate the knowledge requirement, see section 784.08(2)(c), Florida Statutes......
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Jones v. State, 2D13–1141.
...sixty-five years of age or older. After Mr. Jones' judgment and sentence became final, the Fourth District decided State v. Nelson, 577 So.2d 971 (Fla. 4th DCA 1991), which held that to sustain a conviction under section 784.08(2), the State must charge and prove that the defendant actually......