State v. Weaver, No. SC06-258.
| Court | United States State Supreme Court of Florida |
| Writing for the Court | Cantero |
| Citation | 957 So.2d 586 |
| Parties | STATE of Florida, Petitioner, v. Gregory Carnell WEAVER, Respondent. |
| Docket Number | No. SC06-258. |
| Decision Date | 10 May 2007 |
v.
Gregory Carnell WEAVER, Respondent.
Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Tampa Criminal Appeals, Cerese Crawford Taylor and Dale E. Tarpley, Assistant Attorneys General, Tampa, FL, for Petitioner.
James Marion Moorman, Public Defender, John C. Fisher and Lisa Lott, Assistant Public Defenders, Tenth Judicial Circuit, Bartow, FL, for Respondent.
CANTERO, J.
In this case, we consider whether an erroneous jury instruction concerning the crime of battery constituted fundamental error. The defendant was charged with
battery on a law enforcement officer. Battery can be committed either by intentionally touching or striking another or by causing bodily harm to another. The information charged the defendant only with intentionally touching or striking a law enforcement officer, and at trial the State presented evidence only on that form of battery. The trial court, however, instructed the jury on both forms. On appeal, the district court held that the instruction constituted fundamental error, but certified to us the following question as one of great public importance: "Does a trial court commit fundamental error when it instructs a jury regarding both `bodily harm' battery on a law enforcement officer and `intentional touching' battery on a law enforcement officer when the information charged only one form of the crime and no evidence was presented nor argument made regarding the alternative form?" Weaver v. State, 916 So.2d 895, 898-99 (Fla. 2d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we answer "no" to the certified question and therefore quash the district court's decision.
The charges against the respondent, Gregory Carnell Weaver, arose from an incident at an apartment complex where Weaver lived. As Weaver was removing furniture and personal items from the apartment he shared with his girlfriend, a dispute began between the girlfriend and Weaver's sister. A crowd of onlookers soon congregated. Concerned security guards called the Hillsborough County Sheriff's Office. Upon arriving, the officers tried to extricate Weaver and his brother from the crowd. Weaver refused to comply, prompting an officer to push him away. Weaver twice shoved the officer in the chest. He was arrested and charged with battery on a law enforcement officer (BOLEO) under section 784.07, Florida Statutes (2005). Weaver, 916 So.2d at 896.
Section 784.07, Florida Statutes, makes it a felony to commit BOLEO. A battery is defined in section 784.03(1)(a), Florida Statutes (2005). Under that section, a battery can be committed in one of two ways:
The offense of battery occurs when a person:
1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.
Weaver was charged only under the first form: intentionally touching or striking a law enforcement officer. The State's information did not allege, and the State did not argue at trial, that Respondent caused a law enforcement officer bodily harm. Weaver, 916 So.2d at 896. Nor was any evidence of bodily harm presented. Id. Nevertheless, the trial judge instructed the jury, without objection, that it could find Weaver guilty of BOLEO if he "intentionally touched or struck [the officer] against his will or caused bodily harm to [the officer]." Weaver, 916 So.2d at 896 (quoting trial court's instruction). The jury found Weaver guilty.
The Second District Court of Appeal reversed. The court applied its prior decisions in Vega v. State, 900 So.2d 572 (Fla. 2d DCA 2004), and Dixon v. State, 823 So.2d 792 (Fla. 2d DCA 2001), both of which involved nearly identical circumstances, to hold that the trial court's erroneous instruction constituted fundamental error. In both Vega and Dixon the defendants were charged by information only with intentionally touching a law enforcement officer, the trial court erroneously instructed the juries on both the intentional
touching and bodily harm forms of BOLEO, and the Second District held that the instruction constituted fundamental error. In Weaver, however, the court expressed reluctance to follow those cases: "[W]e question whether the Florida Supreme Court's recent pronouncements [on] fundamental error . . . call into question the rule of law that we follow in this case." Weaver, 916 So.2d at 898. The district...
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U.S. v. Vereen, No. 17-11147
...and (2)) as alternative elements of the crime of battery. See, e.g., Jaimes v. State, 51 So.3d 445, 449–51 (Fla. 2010) ; State v. Weaver, 957 So.2d 586, 587–89 (Fla. 2007) ; Fla. Std. Jury Instr. (Crim.) 8.3.The district court was permitted, as it did, to look to Shepard documents to determ......
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Mccray v. State , No. SC08–2434.
...instructions used during the penalty phase, and as a result, he failed to preserve this issue for appellate review. See State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (“Jury instructions are ‘subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on a......
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Gonzalez v. State, No. SC11–475.
...anyone or be influenced by sympathy, Gonzalez must demonstrate fundamental error because he did not object below. See State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (“Jury instructions are subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appe......
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Deparvine v. State, No. SC06-155.
...instructions at trial, the defendant waives the issue for appellate review unless the error, if any, is fundamental. State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (citing Reed v. State, 837 So.2d 366, 370 (Fla.2002)). In State v. Delva, 575 So.2d 643 (Fla.1991), we To justify not imposing ......
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U.S. v. Vereen, No. 17-11147
...and (2)) as alternative elements of the crime of battery. See, e.g., Jaimes v. State, 51 So.3d 445, 449–51 (Fla. 2010) ; State v. Weaver, 957 So.2d 586, 587–89 (Fla. 2007) ; Fla. Std. Jury Instr. (Crim.) 8.3.The district court was permitted, as it did, to look to Shepard documents to determ......
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Mccray v. State , No. SC08–2434.
...instructions used during the penalty phase, and as a result, he failed to preserve this issue for appellate review. See State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (“Jury instructions are ‘subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on a......
-
Gonzalez v. State, No. SC11–475.
...anyone or be influenced by sympathy, Gonzalez must demonstrate fundamental error because he did not object below. See State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (“Jury instructions are subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appe......
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Deparvine v. State, No. SC06-155.
...instructions at trial, the defendant waives the issue for appellate review unless the error, if any, is fundamental. State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (citing Reed v. State, 837 So.2d 366, 370 (Fla.2002)). In State v. Delva, 575 So.2d 643 (Fla.1991), we To justify not imposing ......