Jury Must Make A Separate Finding Of Battery Being Domestic Violence

The defendant was charged with domestic violence battery in violation of sections 784.03(1) and 741.283, Florida Statutes (2018).  Section 741.283 establishes minimum terms of imprisonment for those adjudicated guilty of a crime of domestic violence as defined in section 741.28, Florida Statutes.  The charging document described the victim as a family or household member of the defendant.  The trial court’s instruction to the jury was as follows: “To prove the crime of battery, the State must prove the following element beyond a reasonable doubt: Defendant actually and intentionally touched or struck the victim against her will.  An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.”  The jury found the defendant guilty of battery as charged.  After the verdict and the dismissal of the jury, the trial court found that the battery was a crime of domestic violence.  The defendant filed an appeal.

According to the appeals court a domestic violence designation under section 741.28(2), Florida Statutes (2018) triggers mandatory minimum sentences under section 741.283, Florida Statutes (2018).  In this case, the facts necessary to a “domestic violence” designation are (1) a battery, (2) where the victim is a “family or household member” of the defendant, and (3) the battery resulted in physical injury or death of the victim.  See section 741.28(2), Florida Statutes (2018).  Section 741.283(1)(a), Florida Statutes (2018) describes the mandatory minimum sentences for first, second, and third or subsequent domestic violence offenses and requires that the defendant has “intentionally caused bodily harm to another person”.  Here, the jury was charged only on misdemeanor battery.  It was not asked to make findings regarding bodily harm or injury of the victim or the victim’s status as a family or household member of the defendant.  Therefore, the trial judge was precluded from making the domestic violence finding on her own.

See Bethea v. State, 319 So.3d 666 (Fla. 5th DCA 2021)

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