Jelks v. State

Full title: KELVIN EUGENE JELKS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fifth District

Date published: Jul 9, 1987

509 So. 2d 404 (Fla. Dist. Ct. App. 1987)

Opinion

Nos. 86-1656, 86-1658.

July 9, 1987.

Appeal from the Circuit Court, Seminole County, J. Emory Cross, J.

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.

COWART, Judge.

Kelvin Eugene Jelks, the defendant, appeals his convictions of battery and battery on a law enforcement officer.

Defendant was charged with aggravated battery, section 784.045(1)(a), (b), Florida Statutes (1985), and battery on a law enforcement officer, section 784.07(2)(b), Florida Statutes (1985), as a result of his striking a law enforcement officer one time between the eyes with a tree limb saw. The jury convicted the defendant of simple battery as a lesser included offense of the aggravated battery charge and convicted the defendant of the battery on a law enforcement officer. Battery is a necessarily lesser included offense of battery on a law enforcement officer, Crumley v. State, 489 So.2d 112 (Fla. 1st DCA 1986). In this case the two offenses are factually based on one and the same single factual event, one blow to one law enforcement officer one time with one saw.

Accordingly, the defendant's conviction for battery constituted a second conviction for the same substantive offense. It is unconstitutional to convict a defendant twice for the same offense. The defendant's conviction for the simple battery is reversed.

AFFIRMED IN PART; REVERSED IN PART.

UPCHURCH, C.J., and DAUKSCH, J., concur.