Public-domain · open source
OpenJurist

858 So. 2d 1071

Docket No. 3D01-2021.

Johnson v. State

Robert JOHNSON, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided September 3, 2003.

Rehearing and Rehearing Denied November 7, 2003.

District Court of Appeal of Florida · decided 2003-09-03

Cited by 10 later decisions — most recently July 2016

1 federal appellate · 8 state decisions

Key passage — most relied on by later courts

“the use or threat of use of physical force or violence”

quoted by 3 later decisions, including Acosta v. State, 884 So. 2d 1014 - Jenkins v. State

“while spitting on a law enforcement officer amounts to unwanted touching, it does not amount to the use or threat of use of physical force or violence”

quoted by 1 later decision, including 912 So. 2d 377 - Hearns v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2003-09-03

View the full empirical analysis of this case →

¶1*1072 Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.

¶2Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Senior Assistant Attorney General, and Joseph A. Brophy, Certified Legal Intern, for appellee.

¶3Before GODERICH, GREEN, and FLETCHER, JJ.

¶4Rehearing and Rehearing En Banc Denied November 7, 2003.

¶5

ON MOTION FOR REHEARING GRANTED

¶6PER CURIAM.

¶7The opinion filed November 6, 2002 is withdrawn, and the following is substituted in its place.

¶8Robert Johnson was convicted of (among other offenses) one count of battery on a law enforcement officer and was sentenced as a violent career criminal as provided by section 775.084, Florida Statutes (2001). We reverse, and remand for resentencing.

¶9Johnson's current (battery) offense, spitting on a law enforcement officer, is not one of the forcible felonies enumerated in section 776.08 and does not amount to "the use or threat of use of physical force or violence" as provided by that section.[1] Battery is a qualifying offense where the defendant struck or intentionally caused bodily harm to another person. § 784.03(1)(a)1, 2, Fla. Stat. (2001). While spitting on a law enforcement officer amounts to an unwanted touching, it does not amount to the use or threat of use of physical force or violence. Johnson's spitting offense is not a qualifying one for sentencing as a violent career criminal.

¶10Because Johnson does not have any current qualifying offense that would authorize application of the violent career criminal sentencing statute, we reverse and remand for a new sentencing proceeding in accordance with this opinion.

NOTES

¶11[1] Imposition of a violent career criminal sentence requires the trial court find that, in addition to three or more prior qualifying felony convictions, the defendant's current conviction must also be a qualifying offense. See § 775.084(1)(d)(1)a-g, (2),(3), Fla. Stat. (2001).

/858/so2d/1071 · .json · Public domain