Legal developments impacting repeat battery offenders: Warren and the 2001 amendment to felony battery.

• Author: Bauer, Michael J.
• Position: Florida

Two significant and interdependent legal developments have arisen in the application of the felony battery statute, F.S. [section] 784.03(2), which reclassifies misdemeanor batteries to felony status where the offender has prior battery convictions. First, lawmakers have added aggravated battery and felony battery as predicate convictions and narrowed the threshold for the statute's application to require only one prior conviction rather than the two previously required. Second, district courts of appeal rulings that aggravated batteries do not qualify as prior batteries under the statute have been overturned by the Florida Supreme Court in State v. Warren, 796 So. 2d 489 (Fla. 2001). Practitioners applying the felony battery statute, as well as those defending against its application, should be aware of these recent developments, how they originated, and what to expect in regard to the future application of this statute.

The Origin of Felony Battery

As a means to more aggressively deal with repeat violence, Florida legislators enacted [section] 784.03(2), effective October 1, 1996, to provide that a third or subsequent conviction for battery would constitute a third degree felony. (1) In confronting recidivism, Florida had already been applying felony status to repeat offenders in some other areas of criminal law susceptible to recurrence such as theft, (2) driving under the influence, (3) and driving while license suspended or revoked. (4) Lawmakers passed the felony battery statute as part of "[a]n act relating to domestic or repeat violence" (5) to specifically target recidivist batterers. The original law stated: "A person who has two prior convictions for battery who commits a third or subsequent battery commits a felony of the third degree." (6)

The meaning of "battery" in the statutory phrase "two prior convictions for battery" was later addressed by three separate district courts of appeal (7) and, ultimately, by the Florida Supreme Court. (8)

What Does "Battery" Include?

* The District Courts of Appeal Decisions

Some discussion of the district courts of appeal rulings is warranted to provide a background for the Florida Supreme Court's decision and to explain why and how the legislative amendment was made. In State v. Warren, 755 So. 2d 145 (Fla. 1st DCA 2000), the First District Court of Appeal affirmed the trial court and held that an aggravated battery conviction could not serve as a prior conviction for battery under the felony battery statute. This decision was issued per curium with Judge Kahn dissenting in a written opinion.

In Warren, the First DCA construed the phrase "two prior convictions for battery" to allow for only misdemeanor battery convictions. (9) The majority presumed that since the legislature placed the felony battery provision in the same chapter where it defined and recognized "battery" as a misdemeanor, then the legislature intended for the term battery to have the same meaning throughout the chapter. The court reasoned that "battery" was used to signify misdemeanor or battery and the qualifier "aggravated" was used when that is what the legislature intended.

To demonstrate that its interpretation did not lead to an absurd or unreasonable result, the First DCA analogized to the interpretation given to the 1985 felony petit theft statute in State v. Jackson, 526 So. 2d 58 (Fla. 1988). (10) While the First DCA in Warren acknowledged the lack of a similar qualifier to the word "battery" as in the 1985 felony petit theft statute's wording of "petit theft," it reasoned that the same analysis applied in determining the legislative intent. By using this analogy, the court agreed with defendant Warren's argument that limiting predicate convictions to misdemeanor battery would not create an absurd result because the legislature could have intended harsher punishment for repeat misdemeanor battery offenders since, presumably, offenders previously convicted of a felony-type battery would have already been punished harshly for the previous felony. (11) Furthermore, the court found that its interpretation would, as necessary for penal statutes, be more favorable to the accused based upon principles of strict construction. The First DCA nevertheless certified the following question to the Florida Supreme Court: "Can a conviction for aggravated battery serve as a prior conviction for battery for purposes of section 784.03(2), Florida Statutes?" (12)

In his dissenting opinion, Judge Kahn concluded that the wording of the felony battery statute permitted the use of aggravated battery as a predicate. (13) He found the statute unambiguous and not in need of the construction given to it by the majority. Judge Kahn asserted that both the majority and the trial court rewrote the statute by inserting the word "simple" in front of the word "battery." He also found the felony petit theft analogy misplaced since the court in Jackson merely applied the plain statutory language, "petit theft," before it. Judge Kahn considered the majority view "overly legalistic" and yielding "a result opposite to what the legislature both intended and expressed." (14)

Two other district courts followed the First DCA's decision in Warren. The Fifth District Court of Appeal, in State v. Haney, 766 So. 2d 346 (Fla. 5th DCA 2000), upheld a trial court's dismissal of a felony battery charge based upon facts identical to those recited in Warren and certified the same question certified in Warren. In State v. Smith, 794 So. 2d 651 (Fla. 2d DCA 2001), the Second District Court of Appeal affirmed a similar dismissal of a felony battery charge on the authority of Warren, again certifying the same question. (15) Thus, there was no apparent shortage of cases, even up to the appellate level, involving alleged recidivist batterers for whom the state sought felony status by using their prior convictions for aggravated batteries.

* The Florida Supreme Court Decision

In State v. Warren, 796 So. 2d 489, 491 (Fla. 2001), the Florida Supreme Court quashed the First DCA's decision and ruled that an aggravated battery could serve as a...