Vega v. State

Decision Date17 September 2004
Docket NumberNo. 2D03-5024.,2D03-5024.
Citation900 So.2d 572
PartiesGeronimo VEGA, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

Geronimo Vega was adjudicated guilty and sentenced, following a jury trial, for battery on a law enforcement officer and resisting arrest with violence. Because the jury instructions given on the offense of battery on a law enforcement officer constitute fundamental, reversible error, as conceded by the State, we reverse Vega's conviction and sentence for battery on a law enforcement officer and remand for a new trial on that charge. We affirm without comment as to the resisting arrest with violence charge.

Battery on a law enforcement officer can be committed either by "actually or intentionally touching or striking the officer against the officer's will, or by intentionally causing bodily harm to the officer." Hendricks v. State, 744 So.2d 542, 542 (Fla. 1st DCA 1999); see §§ 784.03(1)(a), .07(2)(b), Fla. Stat. (2001). A defendant is entitled to have the jury instructed on the offense with which he is charged. Dixon v. State, 823 So.2d 792, 794 (Fla. 2d DCA 2001) (citing Zwick v. State, 730 So.2d 759 (Fla. 5th DCA 1999)), review dismissed, 819 So.2d 134 (Fla.2002).

The information in this case charged Vega with only one form of battery on a law enforcement officer, stating that Vega "did knowingly, unlawfully, and intentionally touch or strike" a law enforcement officer. However, the trial court instructed the jury, without defense objection, to convict if the State proved Vega "intentionally touched or struck [the officer] against his will or caused bodily harm to [the officer]." Because Vega was not charged with committing battery on a law enforcement officer by intentionally causing bodily harm, it was error for the trial court to instruct the jury on this alternative.

As the State rightly concedes, this error is fundamental because the jury returned a general verdict of guilt without specifying the basis for the conviction, making it impossible to know whether Vega was convicted of the form of battery with which he was charged rather than the form with which he was not charged. See id. Accordingly, we reverse Vega's conviction and sentence for battery on a law enforcement officer and remand for a new trial on that charge. We affirm Vega's conviction and sentence on the resisting arrest with violence charge.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, J., Concurs.

ALTENBERND, C.J., Concurs with opinion.

ALTENBERND, Chief Judge, Concurring.

I agree that the trial court committed fundamental error in this case according to our holding in Dixon v. State, 823 So.2d 792 (Fla. 2d DCA 2001). I question, however, whether giving this erroneous jury instruction was fundamental error in the context of this case, or whether Dixon contains a description of fundamental error that is still accurate.

Admittedly, the information did not charge Mr. Vega with battery on a law enforcement officer by intentionally causing bodily harm, and the instructions gave the jury this alternative path to a conviction. In this case, however, it was undisputed that Mr. Vega merely pushed the officer several times. There was no testimony or argument suggesting that the officer received any bodily injury. Moreover, at the outset of closing arguments, the assistant state attorney read the elements of the offense to the jury. She stated:

One, Geronimo Vega intentionally touched or struck [the officer] against his will, against the will of [the officer]; or caused bodily harm to [the officer]. The State is not asserting, and you have heard no evidence that [the officer] was injured or there was bodily harm done to [the officer], but there's an "or" here. Intentionally touched or struck.

It seems to me that the explanation of the assistant state attorney cured any error in these instructions, at least to the point of avoiding the doctrine of fundamental error. If I had the option, I would be willing to rule that the giving of this jury instruction was harmless beyond a reasonable doubt in the context of this case. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986)

. In light of recent cases, I am inclined to believe that most, if not all, errors that are harmless beyond a...

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12 cases
  • Jaimes v. State
    • United States
    • Florida Supreme Court
    • December 9, 2010
    ...On appeal, the Second District, applying its previous decisions in Dixon v. State, 823 So.2d 792 (Fla. 2d DCA 2001), andVega v. State, 900 So.2d 572 (Fla. 2d DCA 2004), reversed the conviction. In Dixon, as in Weaver, the jury was instructed on an uncharged alternative form of battery on a ......
  • Berube v. State
    • United States
    • Florida District Court of Appeals
    • October 24, 2014
    ...This new analysis is demonstrated, for example, in State v. Weaver, 957 So.2d 586, 589 (Fla.2007) (disapproving Vega v. State, 900 So.2d 572 (Fla. 2d DCA 2004) ). See also Martinez v. State, 981 So.2d 449, 455–57 (Fla.2008) ; Sampson, 903 So.2d at 1056–57.Thus, returning to the dicta in Pen......
  • Weaver v. State
    • United States
    • Florida Supreme Court
    • December 27, 2005
    ...when the information alleged only an intentional touching. This case is controlled by this court's prior opinion in Vega v. State, 900 So.2d 572, 573 (Fla. 2d DCA 2004) (citing Dixon v. State, 823 So.2d 792 (Fla. 2d DCA 2001)), and we therefore reverse the conviction and remand for a new tr......
  • Eaton v. State
    • United States
    • Florida District Court of Appeals
    • August 23, 2005
    ...court commits fundamental error when it instructs the jury on an alternative theory not charged in the information. Vega v. State, 900 So.2d 572, 573 (Fla. 2d DCA 2004); Mitchell v. State, 888 So.2d 665, 667 (Fla. 1st DCA 2004),review denied, 902 So.2d 790 (Fla.2005); Hodges v. State, 878 S......
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