Florida/Georgia Personal Injury & Workers Compensation

...ngage in such sexual activity acts. Give if applicable However, any act done for bona fide medical purposes is not a sexual battery. Definition Give if applicable "Union" means contact. *93 (9) AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER F.S. 784.08(2)(a) [New] Before you can find the defendant guilty of aggravated battery of a person 65 years of age or older, the state must prove the following three elements beyond a reasonable doubt....

...(Victim) was at the time 65 years of age or older. Definition; give if 2b alleged A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm. (10) AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER F.S. 784.08(2)(b) [New] Before you can find the defendant guilty of aggravated assault of a person 65 years of age or older, the state must prove the following five elements beyond a reasonable doubt....

...Definition; give if 4a alleged A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm. Give if 4a alleged It is not necessary for the State to prove that the defendant had an intent to kill. (11) BATTERY ON PERSON 65 YEARS OF AGE OR OLDER F.S. 784.08(2)(c) [New] Before you can find the defendant guilty of battery of a person 65 years of age or older, the state must prove the following two elements beyond a reasonable doubt: Elements 1. (Defendant) intentionally [touched or struck (victim) against [his][her] will] [caused bodily harm to (victim) ]. 2. (Victim) was at the time 65 years of age or older. *94 (12) ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER F.S. 784.08(2)(d) [New] Before you can find the defendant guilty of assault on a person 65 years of age or older, the state must prove the following four elements beyond a reasonable doubt: Elements 1....

....07, Florida Statutes (Supp. 1998), to add minimum mandatory terms for assault and battery on certain public employees; section 5 adds a minimum mandatory term for a conviction of assault or battery on a person sixty-five years of age or older under section 784.08, Florida Statutes (1997); section 9, which affected Taylor's sentence, amends section 893.135, Florida Statutes (1997), to require minimum mandatory sentences for trafficking in certain amounts of illegal drugs; section 10 conforms num...

...777.04(1) 5.1 --------------------------------------------------------- Comment Several statutes have been added in recent years providing for reclassification of assaults and batteries on designated classes: §§ 784.074, 784.075, 784.076, 784.078, 784.081, 784.082, 784.083, and 784.085....

...ed offense of Felony Battery is only applicable if element 2a is charged and proved. This instruction was adopted in 1992 [603 So.2d 1175] and was amended in 1995 [657 So.2d 1152], and 2007. 8.14 AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER § 784.08(2)(a), Fla....

...A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm. Lesser Included Offenses ------------------------------------------------------------------------ AGGRAVATED BATTERY ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(a2)(a) ------------------------------------------------------------------------ CATEGORY ONE CATEGORY TWO FLA....

...------------------------------------------------------------------------ Aggravated battery 784.045 8.4 ------------------------------------------------------------------------ Felony battery 784.041 8.5 ------------------------------------------------------------------------ Battery on person 65 784.08(2)(c) 8.16 years of age or older ------------------------------------------------------------------------ Battery 784.03 8.3 ------------------------------------------------------------------------ Attempt 777.04(1) 5.1 -----------------------...

...itting the definition of "three-time felony offender." Section 4: amends section 784.07 to provide mandatory minimum sentences for aggravated assault of a law enforcement officer and aggravated battery of a law enforcement officer. Section 5: amends section 784.08 to provide a mandatory minimum sentence for aggravated assault on a person 65 years or older and for aggravated battery on a person 65 years or older....

...rm of 5 years when the three-time violent felony offense is a third degree felony; providing for construction; providing for ineligibility of a three-time violent felony offender for parole, control release, or early release; amending ss. 784.07 and 784.08, F.S.; providing minimum terms of imprisonment for persons convicted of aggravated assault or aggravated battery of a law enforcement officer or a person 65 years of age or older; amending s....

...However, such discussions were not mentioned with reference to an order of restitution. Accordingly, we reverse the order of restitution and remand with direction to proceed in accordance with the foregoing. GLICKSTEIN and FARMER, JJ., and HUBBART, PHILLIP A., Associate Judge, concur. NOTES [1] Section 784.08, Florida Statutes (1991), provides for a reclassification of offenses when the victim of an assault or battery is 65 years of age or older. In the case of a simple battery, the offense is reclassified from a first degree misdemeanor to a third degree felony. § 784.08(2)(c)....

...n element which robbery does not. Further, under the statute in effect at the time appellant committed the crimes in this case, the reclassification would occur when the defendant knowingly committed the battery on a person 65 years of age or older. § 784.08(2)....

...The imposition of felony costs above $200 in the judgment and sentence is error. The case is reversed and remanded for proceedings consistent with this opinion. REVERSED and REMANDED. HARRIS, C.J., and DIAMANTIS, J., concur. NOTES [1] § 812.13(2)(c), Fla. Stat. (1991). [2] § 784.08, Fla....

...id unlawfully, feloniously, and knowingly commit battery upon a person sixty-five (65) years of age or older, to wit: Junior Horn by actually and intentionally touching or striking said person against said person's will in violation of § 784.03 and § 784.08(2)(c) and § 775.087, Fla....

...Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. (emphasis added) We agree, however, with Smith's argument that the State failed to prove that Smith had knowledge that the victim was over the age of 65 as was required by then section 784.08(2)(c), Florida Statutes (1991)....

...that the victim was elderly due to the victim's physical appearance, there was no direct evidence that Smith actually knew the victim was over the age of 65. We think this was fatal to the State's attempt to invoke the enhanced penalty provision in section 784.08(2)(c)....

...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 legislature to eliminate the knowledge requirement. See § 784.08(2)(c), Fla....

...ll not be eligible for release for 10 years. 3. In the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years. [2] At the time of Smith's commission of the offense, section 784.08(2)(c), Florida Statutes (1991) read as follows: Whenever a person is charged with knowingly committing ......

...Aggravated battery (with a deadly weapon) on an elderly victim, unlike simple battery, requires that the offender use a deadly weapon, section 784.045(1)(a)2., Florida Statutes, and that the battery be committed on a person 65 years of age or older, section 784.08, Florida Statutes....

...ON REHEARING In our previous opinion, we affirmed the conviction of appellant, Antwaun Lopez Gordon, for, among other things, aggravated battery. We also affirmed the trial court's reclassification of that offense from a second-degree felony to a first-degree felony pursuant to Section 784.08(2), Florida Statutes (1989), which requires the court to reclassify that offense when the victim is over 65 years old....

...In his motion for rehearing, appellant points out that based upon this court's recent decision in Bryant v. State, 599 So.2d 1349 (Fla. 1st DCA 1992), the trial court should not have reclassified Gordon's offense. We agree, and accordingly grant the motion for rehearing. Section 784.08(1) authorizes certain penalties for a person convicted of assault or battery, aggravated or otherwise, on a person over 65. Section 784.08(2) provides, in part: Whenever a person is charged with knowingly committing an assault or aggravated assault or a battery or aggravated battery upon a person 65 years of age or older, the offense for which the person is charged shall...

...y of the first degree. (Emphasis added.) This court held in Bryant both that the information must specifically charge, and the state must then prove, the defendant knew the victim was over 65, before the defendant's offense may be reclassified under section 784.08(2). The information in Bryant charged him with violating section 784.08 by intentionally committing the aggravated batteries and knowingly causing the victims great bodily harm, and stated that his victims were over 65, but did not allege that he knew his victims were over 65. Because the information did not make this specific allegation, this court construed the information as charging Bryant with violating section 784.08(1) and not (2)....

...nse with which he was charged. Accord Zettle v. State, 538 So.2d 121 (Fla. 1st DCA 1989) (follows Cochenet, but did not involve issue of fundamental error). As in Cochenet, it was fundamental error to convict Gordon of the reclassified offense under section 784.08(2) when he was not properly charged with violating such provision in the information. We therefore grant the motion for rehearing, reverse appellant's conviction for aggravated battery as a first-degree felony, and remand for entry of a judgment for a second-degree felony pursuant to section 784.08(1) and for resentencing both as to this offense and for the offense, as stated in our opinion of May 11, 1992, of attempted sexual battery using slight force, a third-degree felony....

...ty, or permanent disfigurement to [alleged victim]. It is further alleged that at the time Antwuan Gordon Lopez [sic] committed this aggravated battery that [alleged victim] was 65 years of age or older, in violation of sections 784.03, 784.045, and 784.08, Florida Statutes....

...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)....

...Burglary of a dwelling with battery requires the entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein. See § 810.02(2), Fla. Stat. (1995). Battery on a person 65 years of age or older requires that the battery be on a person 65 or older. See § 784.08, Fla....

...counts of aggravated battery upon an elderly person. He raises numerous issues in this appeal. Because we find that the trial judge erred when he reclassified the aggravated batteries from second degree felonies to first degree felonies pursuant to Section 784.08(2), Florida Statutes, we vacate the sentences imposed for the aggravated batteries and remand for resentencing. The state's second amended information charged the appellant with two counts of robbery with a deadly weapon in violation of § 812.13(2)(a) and two counts of aggravated battery upon an elderly person in violation of § 784.08....

...to run concurrently with the corresponding robbery offense against the same victim. The judge reasoned that the aggravated batteries, ordinarily second degree felonies under § 784.045(2), should be reclassified to first degree felonies pursuant to § 784.08(2)(a). He therefore imposed two life sentences for the batteries pursuant to the habitual violent felony offender statute, § 775.084(4)(b)1, noting, in addition, that each sentence carries a mandatory minimum 3-year term pursuant to § 784.08(1)....

...ce. Alternatively, the appellant argues that he is entitled to a new trial because the judge erred when he instructed the jury to find him guilty of aggravated battery upon an elderly person if he "either knew or should have known" the victim's age. Section 784.08 provides in relevant part: (1) A person who is convicted of an aggravated assault or aggravated battery upon a person 65 years of age or older shall be sentenced to a mandatory minimum term of 3 calendar years and fined not more than $...

...Nelson, 577 So.2d 971, 972 (Fla. 4th DCA 1991), the court determined that although it is doubtful that the legislature *1352 intended the state to have to prove that the defendant knew his victim was at least 65 years old before the enhanced penalty identified in § 784.08(2) could be invoked, the wording of the statute permits no alternative construction. We agree with Nelson but further observe that because the word "knowingly" appears only in subsection two, a defendant's knowledge of his victim's advanced age is relevant only when the state specifically charges a violation of § 784.08(2) and seeks an upward reclassification of the defendant's offense. The information in this case did not indicate which subsection of § 784.08 was the operative one, but, more importantly, it did not charge the appellant with "knowingly committing an ... aggravated battery upon a person 65 years of age or older." [2] In our view, the information necessarily charged the appellant with a violation of § 784.08(1) so it was not necessary for the state to allege or prove that the appellant knew the victims' ages. Because there was overwhelming evidence that the appellant battered Cecil and Myra Jones with a deadly weapon and the Joneses were over the age of 65 at the time, the appellant's motion for judgment of acquittal on the § 784.08(1) charges was properly denied. It was, however, error for the judge to reclassify the appellant's offenses from second degree felonies under § 784.045(2) to first degree felonies pursuant to § 784.08(2)(a), because the appellant was never prosecuted under the latter statute....

...We therefore vacate the sentences imposed on the aggravated battery counts and remand for resentencing on the two second degree felony offenses. We need not address the appellant's assertion of error in the jury instructions because of our view that § 784.08(1) does not require the state to prove that the defendant knew of his victim's advanced age. The appellant next assails the judge's decision to reclassify his aggravated batteries from second degree to first degree felonies under § 784.08(2) and then enhance the penalties for those offenses again under the habitual violent felony offender statute....

...uble enhancement in the appellant's case is no longer possible and we need not address this issue. Finally, the appellant asserts as error the judge's imposition of consecutive 3-year mandatory minimum terms for his aggravated battery offenses under § 784.08(1)....

...er Palmer v. State, 438 So.2d 1, 4 (Fla. 1983). Because we are vacating the sentences imposed for the appellant's aggravated battery offenses, we need not decide this issue. We note, however, that stacking of the 3-year mandatory minimum terms under § 784.08(1) may well be problematic after Daniels v....

...State, 595 So.2d 952, (Fla. 1992), which held that stacking of the mandatory minimum terms provided in the habitual felony offender statute is error. Accordingly, we affirm the appellant's conviction of two counts of aggravated battery upon an elderly person in violation of § 784.08(1)....

...bility or permanent disfigurement to Myra N. Jones or in committing said battery used a deadly weapon, to-wit: a stick or poole cue [sic] and at the time of said battery Myra N. Jones was 65 years of age or older in violation of Sections 784.045 and 784.08, Florida Statutes.

...When I came to they had ripped the camera out of my hands and taken the film out of the camera ... I was wet and muddy, and my shirt was almost torn off. [3] In view of Mr. Hatmaker's age (67), [4] Mr. Cox was arrested and prosecuted for felony battery in violation of Fla. Stat. 784.08(2)(c)....

...December 30, 2003 Report and Recommendation (Doc. No. 65). [2] See Joint Pretrial Statement (Doc. No. 76), ¶ 5 at 6. [3] Defendant's Notice of Filing of Documents (Doc. No. 40), Ex. A at 1-3. [4] See id. at 1. [5] See Doc. No. 40, Ex. B. Fla. Stat. § 784.08(2)(c) reads as follows: Whenever a person is charged with committing an assault or aggravated assault or a battery or aggravated battery upon a person 65 years of age or older, regardless of whether he or she knows or has reason to know the...

...ublic_ 79045 10.6 Comment This instruction was approved in 1992 [ 603 So.2d 1175 ], and amended in 1995 [ 657 So.2d 1152 ], and 2007 [ 962 So.2d 310 ], and 2008 [ 994 So.2d 1038 ], and 2013. 8.15 AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER § 784.08(2)(b), Fla....

...A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm. Give iffa alleged. It is not necessary for the State to prove that the defendant had an intent to kill. Lesser Included Offenses [AGGRAVATED ASSAULT ontersonííís years-of age or =OLDER' — 784.08(2)(b) ?£ CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Aggravated assault 784.021 8.2 Assault on person 65 years of age or older 784.08(2Xd) 8.17 Improper exhibition of a dangerous weapon or firearm, if Fla....

...misdemeanor and for appropriate resentencing. Cochran, a worker in a nursing home, was charged with battering an elderly incompetent woman who was approximately 80 years old at the time of the offense. The statute Cochran was convicted of violating, section 784.08(2)(c), Florida Statutes (1989), provided, at the time of the misconduct attributed to her, as follows: (2) Whenever a person is charged with knowingly committing an assault or aggravated assault or a battery or aggravated battery upon...

...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 (Supp....

...Stat. (2003) (involving fleeing or attempting to elude a law enforcement officer; providing, "[n]otwithstanding s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section."); § 784.08(1), (3), Fla....

...On appeal, the State has conceded error. *912 Aggravated battery is a second-degree felony. § 784.045(2), Fla. Stat. (1995). The statute defining the offense of aggravated battery on a person sixty-five years of age or older reclassifies the offense level to a first-degree felony. § 784.08(2)(a). Furthermore, a defendant convicted of aggravated battery against a person sixty-five or older " shall be sentenced pursuant to the sentencing guidelines." § 784.08(1) (emphasis added)....

...We affirm appellant's judgment and sentence in this appeal, which was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, we remand for correction of the judgment of conviction to reflect that the battery conviction was pursuant to section 784.03(1), not section 784.08(1), Florida Statutes....

...Mickens defended, claiming that battery on the female did not occur. He admitted that the battery on the male friend occurred but claimed he had acted in self-defense. The jury acquitted Mr. Mickens of the battery on the female and convicted him of the lesser offense of battery as to her male friend. See § 784.08(1)....

..."did not constitute stalking because the statute requires repeated acts"). Harassment, in turn, requires "a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose." § 784.08(1)(a) (emphasis added); see Polanco v....

...We write only to explain why we affirm on ground one even though the postconviction court improperly denied Mr. Jones’ motion as successive. In 1990, Mr. Jones pleaded no contest to robbery with an aggravated battery and aggravated battery on a victim sixty-five years or older. See § 784.08(2)(a), Fla....

...ith aggravated battery on a person 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 knew the victim was sixty-five years of age or older. The Nelson court’s interpretation of section 784.08(2) was adopted by this court and other district courts of appeal....

...prima facie case against Bonge for the offense of battery. Accordingly, the trial court erred in denying Bonge's motion to dismiss and we reverse. *1232 Bonge was charged by information with battery on a person 65 years of age or older, contrary to section 784.08(2)(c), Florida Statutes....

...Bonge filed a sworn motion to dismiss the information pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure. In his motion to dismiss, he made the following factual assertions: 1. Mr. Bonge is charged with battery on Marie Andree, a person 65 years of age or older, on February 16, 2009, in violation of section 784.08(2)(c), Fla....

...Because this appeal raises a question of law, the standard of review is de novo. State v. Sholl, 18 So.3d 1158, 1160 (Fla. 1st DCA 2009). Based upon the facts admitted in the traverse, the State could not establish a prima facie case for the offense of battery. Section 784.08, which proscribes battery on a person 65 years of age or older, incorporates the definition of battery contained in section 784.03....

...In his motion for postconviction relief, Nelson alleged four grounds, one of which has merit. The issue for resolution is whether the trial court erred in classifying Nelson as a PRR on the two convictions of battery of a person sixty-five years old or older, pursuant to section 784.08(2)(c), Florida Statutes (2004)....

...encing as a PRR for the two battery offenses. Battery of a person sixty-five years old or older is neither an enumerated felony nor does it contain the necessary element of "the use or threat of physical force or violence against an individual." See § 784.08(2)(c), Fla....

...commonly referred to as “the deadly weapon” theory. Where, as in this case, the victim of the aggravated battery is sixty-five years of age or older, the offense is reclassified from a felony of the second degree to a felony of the first degree. § 784.08(2)(a)....

...th day of August, in the year of our Lord, two thousand eleven, did intentionally or knowingly cause great bodily harm, permanent disability, or permanent disfigurement to [the victim], a person 65 years of age or older; contrary to Chapter. 784.045/784.08(2)(a), Florida Statutes, and against the peace and dignity of the State of Florida....

...Ortiz argues that the appropriate remedy upon a reversal of his judgment and sentence for aggravated battery on a person sixty-five years of age or older is a remand for entry of a judgment finding Mr. Ortiz guilty of simple battery on a person sixty-five years of age or older, sections 784.03(1) and 784.08(2)(c), a felony of the third degree, and for resentencing Mr....

...Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee. GROSS, J. Billy Blackburn entered an open no contest plea to battery upon a person over the age of 65 in violation of sections 784.03(1) and 784.08(2)(c), Florida Statutes (2005). Over the state's objection, the trial court sentenced Blackburn as a youthful offender, withheld adjudication of guilt, and placed him on three years of probation. The state relies on the language of section 784.08 to argue that the court erred in withholding adjudication. Section 784.08(2)(c) elevates a misdemeanor battery on a victim 65 years of age or older to a third degree felony. Section 784.08(3) provides: Notwithstanding the provisions of s....

...Blackburn points to section 958.04(2)(a), Florida Statutes (2005), which provides that "[i]n lieu of other criminal penalties authorized by law," a court may place a youthful offender "on probation or in a community control program, with or without adjudication of guilt." We hold that the youthful offender statute trumps section 784.08(3) and controls the sentence in this case....

...bly to the accused. See § 775.021(1), Fla. Stat. (2005); State v. Drury, 829 So.2d 287, 289 (Fla. 1st DCA 2002). The youthful offender statute indicates that it is to apply "[i]n lieu of other criminal penalties authorized by law." The provision in section 784.08(3) concerning adjudication of guilt is one such penalty authorized by law. Had the legislature desired to require adjudication of youthful offenders, section 784.08(3) would have begun: "Notwithstanding the provisions of ss....

...while the staff member is engaged in the lawful performance of his or her duties and when the person committing the offense knows or has reason to know the identity or employment of the victim....” § 784.074(1), Fla. Stat. (2013) (emphasis added). The same is true when the victim is a specified official or employee under section 784.081 or a code inspector under section 784.083. §§ 784.081(2), 784.083, Fla....

...Moreover, if the Legislature intended to make knowledge of the victim’s status not required under section 782.065, it could have included a provision stating as much. To illustrate, the earlier reclassification statute governing assault or battery on persons 65 years of age or older — section 784.08 — was previously interpreted by courts as requiring knowledge of the victim’s status, although knowledge of the victim’s status was not expressly required in the statute....

...See Cochran v. State, 622 So.2d 166, 167 (Fla. 2d DCA 1993). The Legislature then revised the statute to make clear that the penalty shall increase by one degree “regardless of whether [the defendant] knows or has reason to know the age of the victim.” See § 784.08(2), Fla....

...cribed age group. In that respect, this provision is similar to Florida’s battery statute, which makes it a third-degree felony to commit battery upon a victim sixty-five years old or older what would be misdemeanor battery on a younger adult. § 784.08(2)(c), Fla....

...cribed age group. In that respect, this provision is similar to Florida’s battery statute, which makes it a third-degree felony to commit battery upon a victim sixty-five years old or older what would be misdemeanor battery on a younger adult. § 784.08(2)(c), Fla....

...Count six charged Whitfield with battery on a person sixty- five years or older. This is a reclassified version of simple battery, defined simply as a 2 battery on a person sixty-five years of age or older. § 784.08(2), Fla. Stat. (2012). Both are third-degree felonies. §§ 784.041(3); 784.08(2)(c), Fla....

..., or higher degree, of simple battery. Id. at 108. The same logic applies here. Both domestic battery by strangulation and battery on a person sixty-five or older are aggravated forms, or higher degrees, of simple battery. See §§ 784.041(2)(a); 784.08(2), Fla....

PER CURIAM. Affirmed. See § 784.08, Fla. Stat. (1999).

...and supported by the evidence. Anderson, supra. In addition, the State correctly concedes that the trial court erred in sentencing appellant to a mandatory minimum term for battery on a person over the age of 65. The minimum mandatory provisions of section 784.08, Florida Statutes, only apply to aggravated batteries....

...1 In so doing, the court imposed a greater burden upon the state than that encompassed in the legal definition 2 of assault, but in view of the wording of the information, the court’s instruction was not inappropriate. We find error in the court’s sentence for battery imposed in Count II. According to section 784.08(2), Florida Statutes (1979), battery is a misdemeanor of the first degree....

third-degree felony instead of a misdemeanor. See § 784.08(2)(c), Fla. Stat. (2006). At sentencing, Mr. Carew’s

...We vacate our previous opinion and substitute the following. The State correctly concedes that the trial court erred in sentencing appellant to a mandatory minimum term for battery on a person over the age of 65. The minimum mandatory provisions of section 784.08, Florida Statutes, only apply to aggravated batteries....

...not constitute stalking because the statute requires repeated acts”). Harassment, in turn, requires “a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.08(l)(a) (emphasis added); see Polanco v....

...State, 425 So.2d 1126 (Fla.1982), we conclude that section 784.-045(l)(b), Florida Statutes (1989), which provides that simple battery upon a pregnant woman is aggravated battery, is not facially invalid, see State v. Nelson, 577 So.2d 971 (Fla. 4th DCA 1991) (upholding section 784.08(2), which so provides as to persons over 65), and that fundamental error does not otherwise appear....

...le battery appears to be a lesser included offense of section 951.075. It occurs when a person: (a) Actually and intentionally touches or strikes another person against the will of the other; or (b) Intentionally causes bodily harm to an individual. § 784.08(l)(a) and (b), Fla.Stat....

...2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], 2013 [131 So. 3d 755], and 2015 [157 So. 3d 1027], and 2016. 8.15 AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER § 784.08(2)(b), Fla....

...Give if 4a alleged. It is not necessary for the State to prove that the defendant had an intent to kill. Lesser Included Offenses AGGRAVATED ASSAULT ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(2)(b) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Aggravated assault 784.021 8.2 Assault on person 65 784.08(2)(d) 8.17 years of age or older Improper exhibition of 790.10* 10.5* a dangerous weapon or firearm, if Fla....

...Wright appeals the summary denial of his motions for post-conviction relief. We reverse the order only as to Wright’s contention that the trial court improperly sentenced him as a prison re-leasee reoffender (“PRR”) on his two convictions for felony battery on a person sixty-five years of age or older. See § 784.08(2)(c), Fla....

will or intentionally caused him bodily harm. See § 784.08(1), Fla. Stat. (2009). There was no such evidence

...§ 784.07(2)(b), as is a simple battery committed upon a known staff member of a sexually violent predator detention or commitment facility, Fla. Stat. § 784.074(1)(c), and as is a simple battery committed on a person sixty-five years of age or older, Fla. Stat. § 784.08(2)(c)....

PER CURIAM. Appellant was charged under section 784.08, Florida Statutes, with battery on a person aged 65 years or older and convicted by jury....

...Contrary to the express requirements of that statute, however, the trial court withheld adjudication of guilt. We hereby treat the state’s supplemental brief as a petition for mandamus seeking adjudication of guilt and grant that petition. We remand to the trial court to adjudicate appellant guilty as required by section 784.08....

hatred, spite, or evil intent), and holding that section 784.08(4) requires proof of legal malice); Fla. Std

...tress); Seese v. State , 955 So.2d 1145 (Fla. 4th DCA 2007) (noting distinction between "legal malice" (wrongfully, intentionally, without legal justification or excuse) and "actual malice" (ill will, hatred, spite, or evil intent), and holding that section 784.08(4) requires proof of legal malice); Fla....

legislature is cognizant of the scienter issue. In section 784.08, Florida Statutes, the legislature has provided

...Kirshner to DCF for care and treatment. The order found that Kirshner remained incompetent to proceed due to mental illness but that she now met the criteria for involuntary placement under section 916.13(1). 2 It is from this order that DCF seeks certiorari 1 See § 784.08(2)(a), Fla....

...ion 784.03(2) requires that the state prove the elements of battery, which 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. § 784.08(l)(a), Fla....

...However, before imposing such sentence, the court shall give due consideration to the criteria in s. 921.005(1). § 921.001(5), Fla.Stat. (Supp.1988). . The amendments to the forms in Florida Rule of Criminal Procedure 3.988 are appended to this opinion. . E.g., ch. 92-50, § 1, Laws of Fla. (amending § 784.08(2), Fla.Stat., enhanced penalties for assault or battery committed on a person over the age of 65); ch....

...sentence of 30 years' imprisonment. The appellant filed a rule 3.800(a) motion asserting that his 30-year upward departure sentence is illegal because the trial court was required to sentence him within the guidelines range. He bases his argument on section 784.08(1), Florida Statutes (1997), which states in pertinent part: "A person convicted of an aggravated battery upon a person 65 years of age or older shall be sentenced pursuant to the sentencing guidelines....

...uld not be sentenced as an HFO. See, e.g., Clay v. State, 750 So.2d 153 (Fla. 1st DCA 2000). It is clear that the appellant could not receive an HFO sentence for the crime of aggravated assault on a person over 65 years of age as the 1997 version of section 784.08 requires that the defendant be sentenced "pursuant to the guidelines." See Wright, 992 So.2d at 912; Clay v....

...encing guidelines"). However, in this case the appellant was not sentenced as an HFO, but rather, was given an upward departure sentence. The issue here is whether an upward departure sentence is still a "guidelines sentence" as that term is used in section 784.08, Florida Statutes (1997)....

...(1997) (a habitual offender sentence is not subject to the guidelines provisions of section 921.001). Thus, we hold that the trial court could properly impose an upward departure sentence in this case. AFFIRMED. BARFIELD, CLARK, and ROWE, JJ., concur. NOTES [1] Section 784.08 no longer requires that the appellant be sentenced pursuant to the guidelines or the Criminal Punishment Code....

...ttery, or felony battery. Next, instruction 8.16 (Battery on Person 65 Years of Age or Older) is updated to clarify that it is not necessary for the State to prove that the defendant knew or had reason to know the age of the victim, citing section 784.08(2), Florida Statutes (2018). 1....

...This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So. 2d 1175], 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], and 2015 [157 So. 3d 1027], and 2018. 8.16 BATTERY ON PERSON 65 YEARS OF AGE OR OLDER § 784.08(2)(c), Fla._Stat. To prove the crime of Battery on a Person 65 Years of Age or Older, the State must prove the following two elements beyond a reasonable doubt: Give 1a and/or 1b depending on the charging document. 1....

...actually and intentionally touched or struck (victim) against [his] [her] will. b. intentionally caused bodily harm to (victim). - 11 -  2. (Victim) was at the time 65 years of age or older. § 784.08(2), Fla....

...rough the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.] Lesser Included Offenses BATTERY ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(2)(c) CATEGORY ONE CATEGORY TWO FLA....

...ttery, or felony battery. Next, instruction 8.16 (Battery on Person 65 Years of Age or Older) is updated to clarify that it is not necessary for the State to prove that the defendant knew or had reason to know the age of the victim, citing section 784.08(2), Florida Statutes (2018). 1....

...This instruction was adopted in 1981 [431 So. 2d 594] and amended in 1992 [603 So. 2d 1175], 1995 [657 So. 2d 1152], 2007 [962 So. 2d 310], 2008 [994 So. 2d 1038], and 2015 [157 So. 3d 1027], and 2018. 8.16 BATTERY ON PERSON 65 YEARS OF AGE OR OLDER § 784.08(2)(c), Fla._Stat. To prove the crime of Battery on a Person 65 Years of Age or Older, the State must prove the following two elements beyond a reasonable doubt: Give 1a and/or 1b depending on the charging document. 1....

...actually and intentionally touched or struck (victim) against [his] [her] will. b. intentionally caused bodily harm to (victim). - 11 -  2. (Victim) was at the time 65 years of age or older. § 784.08(2), Fla....

...rough the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.] Lesser Included Offenses BATTERY ON PERSON 65 YEARS OF AGE OR OLDER — 784.08(2)(c) CATEGORY ONE CATEGORY TWO FLA....

...dence was introduced at trial to show the victim was at least sixty-five years of age at the time of the battery, a required statutory element that must be established in order to enhance a misdemeanor battery to a third-degree felony pursuant to section 784.08(2)(c), Florida Statutes (2006). Cf. Cochran v. State, 622 So. 2d 166, 167 (Fla. 2d DCA 1993) (reversing a conviction under an earlier version of section 784.08(2)(b) for aggravated battery on a person sixty-five years of age or older where the State failed to prove that the defendant knew of the victim's age and noting that the legislature subsequently amended the statute in 1992 to remove...

...ated that “I transported her to the police department, decided to take her away from there.... [W]e just decided to take her to the station and put her in a holding cell.” Section 784.07(2) provides an enhancement to the offense of battery under section 784.08(1), Florida Statutes (2006), by elevating the offense to a third-degree felony....

...While attempting to strike Dale, the appellant inadvertently hit the victim when he stepped in between the two women. The victim was hit on the side of the head, which caused him to fall to his knees and break his eyeglasses. It is undisputed that the victim was 65 years or older at the time of the altercation. Section 784.08, Florida Statutes (2013), provides, in part: (2) Whenever a person is charged with committing ......

...upon a person 65 years of age or older, regardless of whether he or she knows or has reason to know the age of the victim, the offense for which the person is charged shall be reclassified as follows: [[Image here]] (c) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree. § 784.08(2)(c), Fla....

...utes (1997), which required that the offender “knew or should have known that the victim was pregnant”); S.G., 29 So.3d at 384 (stating that the first-degree misdemeanor battery conviction could not be reclassified to a third-degree felony under section 784.081(2)(c), Florida Statutes (2008), which required that the offender knew or had reason to know the identity or position or employment of the victim)....