West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          A person can commit the crime of aggravated battery in one of three ways in Florida.  If a person, while committing the crime of battery: 

          1.  Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement of another person; or

          2.  Uses a deadly weapon; or

          3.  If a person who was the victim of a battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant, then the offender may be guilty of the crime of aggravated battery. 

          The crime of aggravated battery is a second-degree felony which is punishable by up to 15 years in prison.

          However, deciding whether someone's actions actually constitute the crime of aggravated battery can sometimes be quite difficult  as the case of Nguyen v. State of Florida illustrates.

          In that particular case, Mr. Nguyen was charged, among other things, with the crime of aggravated battery causing great bodily harm, permanent disability, or permanent disfigurement to the victim or, alternatively, by using a deadly weapon which happened to be an electric stun gun.

         The First District Court of Appeal began its analysis with the observation that proving great bodily harm requires more than slight, trivial, minor, moderate, or some harm.  In Mr. Nguyen's case, the victim testified that it hurt when she was shot with the stun gun and that it caused her to lie down.  In addition, a police officer testified that he saw burn marks on the victim after he arrived on scene.  Significantly, however, no evidence was presented that the victim required medical treatment for her burns or that she had any lasting negative effects or scars from being shot with a stun gun.  The Court of Appeal therefore concluded that there was not enough evidence to convict Mr. Nguyen of the crime of aggravated battery by causing great bodily harm.

          However, that did not end the Court's analysis since it still had to decide whether Mr. Nguyen was nonetheless guilty of committing the crime of aggravated battery because he had used a deadly weapon.

          The Court defined a "deadly weapon" as:

          1.  Any instrument which, when it is used in the ordinary manner contemplated by its design and construction will or is likely to cause great bodily harm; or

          2.  Any instrument likely to cause great bodily harm because of the way it is used during a crime.

          In Mr. Nguyen's case, the appellate court ruled that the prosecution failed to present any evidence that a stun gun qualifies as a deadly weapon by its ordinary use.  Additionally, the evidence was insufficient to prove that the stun gun used by Mr. Nguyen constituted a deadly weapon based upon the way that he used it against the victim.  Accordingly, there was also not enough evidence to convict Mr. Nguyen of the crime of aggravated battery for using a deadly weapon.

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          In 2007, the Georgia Supreme Court ruled as unconstitutional a Georgia law that prohibited registered sex offenders from living within 1,000 feet of child care facilities, schools, churches, or other areas where children congregate. 

          The case, Mann v. Georgia Department of Corrections, arose when Anthony Mann, a registered sex offender in Georgia, filed a lawsuit asking that the law mentioned above be declared unconstitutional because it authorized the taking of his home without his being financially compensated in violation of both the United States Constitution and the State Constitution of Georgia. 

          Mann also asked that this law be declared unconstitutional because it prohibits registered sex offenders from working at any business in Georgia that is located within 1,000 feet of a church, school, or child care facility.  He argued that this law likewise authorizes the unconstitutional taking of his business, just as it does his home, without his being financially compensated.

         The Georgia Supreme Court did ultimately declare that portion of the law unconstitutional which prohibited registered sex offenders from living within 1,000 feet of child care facilities, schools, churches, or other areas where children congregate.  However, it did not rule unconstitutional that portion of the same law which prohibits registered sex offenders from working at businesses located within 1,000 feet of a church, school, or child care facility.

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          In the courts of Florida, heat of passion is recognized as a defense to the crimes of first and second-degree murder.

          Heat of passion is a mental state provoked by fear, rage, anger or terror that, combined with adequate provocation, is a defense to the crimes of first and second degree murder. Provocation, in order to be adequate, must be such as might naturally cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection.

          An example of someone who relied upon the heat of passion defense occurred in the case of Villella v. State of Florida.  In that case, Mr. Villella, who was charged with the first-degree murder of his wife, argued that the stabbing of his wife was not premeditated but was instead a crime of passion committed after he learned that his wife was having an affair and intended to leave him and take their child with her.

          The jury heard Villella's two tape-recorded interviews with the police in which he told them that he suspected his wife was having an affair because she was making and receiving unusual telephone calls.  He also told the police that she was staying out late drinking and was, on one of those occasions, driven home by another man.  In addition, Villella found an intimate letter written by his wife to the man who had driven her home.  When Villella confronted his wife with his suspicions, she admitted that she was indeed having an affair with that same man.

          Tthe trial judge did not, however, let the jury hear any evidence about the fact that the man whom Ms. Villella was having an affair with had previously admitted that he had had such an affair and that he had driven her home on one occasion.  The judge refused to let the jury hear that evidence because he believed it was irrelevant. 

          Villella was ultimately convicted of first-degree murder and appealed his conviction to Florida's Fifth Distict Court of Appeal.

          Fortunately for Mr. Villella, the appellate court disagreed with the trial judge and granted Villella a new trial since it believed that such evidence would have corroborated Villella's statements to the police that his wife was having an affair and that it would also have shown that his belief that his wife was having an affair had merit to it and was not simply a lie made up in an attempt to get away with murder.

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          On July 12, 2008, I wrote an article on this website entitled "How to Get a Criminal Charge Dropped" in which I discussed Florida's pretrial intervention programs [PTI] that are authorized by Florida statutes sections 948.08 and 948.16.  In that article, I stated that "[s]uccessfully completing a PTI program is one way of getting a criminal charge dropped without having to go through the stress of a trial." 

          While that is undoubtedly true, one prerequisite for entering a pretrial diversion program in Florida frequently includes admitting in writing that one is guilty of the charge that one is accused of committing.  What difference does that make, you might ask, given the fact that the case will eventually be dropped by the prosecutor if the person entering the PTI program successfully completes it? 

          This article addresses that question by identifying three situations in which admitting guilt as part of entering a PTI program can have unforeseen and potentially disastrous consequences for the person who admits guilt.

          1.  The situation that I see arise most frequently involves those clients who have been offered an opportunity to enter and complete the PTI program but who are not yet United States' citizens. Immigrants such as these who admit that they have committed even minor criminal offenses can face various negative consequences including deportation. 

          When this situation arises, it is almost always a good idea to see if the prosecutor who is handling the case will agree to waive the requirement that the client admit guilt so that the client does not later face unintended immigration consequences.

          The New York City Bar Association has published an article entitled "The Immigration Consequences of Deferred Adjudication Programs in New York City."  Although this article pertains to New York City in particular, much of the information contained in it is applicable to Florida residents as well. 

          2.  The second situation involves those clients who are fearful that they will lose their jobs if their employers discover that they have admitted committing a crime.  This particular situation is addressed in the October 2008 issue of the The Florida Bar Journal in an article entitled "Diversion Programs:  PTI  . . .  Dismissal  . . .  Problem Solved . . . or Is It?"  The authors of this article, George E. Tragos and Peter A. Sartes, write that admitting guilt as part of entering a PTI program "has been known to cause problems with employers whose employee conduct manuals include language about accepting responsibility or guilt as a cause for termination." 

          One solution suggested by the authors is to try to get the prosecutor to waive the admission of guilt by providing the prosecutor with that portion of the client's employment manual which states that such an admission may result in the client being fired.

          3.  The third situation arises when a client violates one or more conditions of the PTI agreement.  What that happens, the client is removed from the PTI program and ordered to return to court to resolve his case.  If the client decides to resolve his case by proceeding to trial, it would seem that his prior admission of guilt when first entering the PTI program could be used against him at his trial.  Florida statute section 90.608 seems to state as much when it says that "[a]ny party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness's present testimony."

          However, attorneys Tragos and Sartes, who were quoted above, disagree with this  conclusion when they write in their article that the "acceptance of guilt cannot be used as a confession or admission later should the intervention fail and the case reverts to prosecution . . . ."  The authors do not, however, cite any statutory or case law authority to support such a statement.

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