FERNEY ZAPATA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Ferney Zapata appealed his convictions for aggravated battery and battery arising from beating his ex-girlfriend against a wall and car. The appellate court agreed that a wall cannot constitute a deadly weapon and that convicting him of both battery and aggravated battery for the same continuous episode violated double jeopardy principles.
A wall is not a deadly weapon under common understanding, so the aggravated battery conviction with the wall must be reduced to battery. Because both convictions arose from the same continuous criminal act against the same victim, one conviction must be vacated to avoid double jeopardy violations.
[1] A wall, as used in the context of an assault, is not a deadly weapon.
[2] A defendant cannot be convicted of both aggravated battery and battery when both charges stem from the same continuous criminal act or episode.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a paved surface is not understood to be a weapon within the common or ordinary meaning of the word”
Establishes that a wall does not qualify as a deadly weapon for aggravated battery purposes
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn March 28, 2001, defendant came to his ex-girlfriend Nancy Alers' home. When her current boyfriend arrived, defendant became upset. As Alers prepare…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Deadly Weapon cases and more on FLexlaw
PER CURIAM.
Defendant appeals from his convictions and sentences for charges of aggravated battery and battery.
Defendant was charged with, among other things, aggravated battery with a deadly weapon (a wall), and aggravated battery with a deadly weapon (a car), stemming from an altercation with Nancy Alers, his previous girlfriend.
At trial, Ms. Alers testified that defendant came to her home on the morning of March 28, 2001, and became upset when Ms. Alers’ current boyfriend arrived. She testified that while defendant was at her door, her current boyfriend arrived in the parking lot downstairs. Ms. Alers went downstairs and had a brief conversation with her boyfriend while defendant remained upstairs. Thereafter, Ms. Alers’ boyfriend left and Alers returned to her building.
As Ms. Alers prepared to go up the stairs, defendant grabbed Alers by her legs and neck, dragging her to the sidewalk where he proceeded to beat Ms. Al-ers’ head against a cement pillar wall and then beat her head against a car. Defendant was convicted of aggravated battery with a deadly weapon, the wall, and battery as a lesser included offense of aggravated battery, the car. On appeal, defendant argues that (1) the wall, as used in this instance is not a deadly weapon, and (2) the convictions for both battery and aggravated battery violates the double jeopardy clause where both charges stem from a single episode. We agree.
With respect to the aggravated battery conviction, we find that a wall is not a deadly weapon. See State v. Houck, 652 So. 2d 359, 360 (Fla.1995)(a paved surface is not understood to be a weapon within the common or ordinary meaning of the word). Consequently, defendant’s conviction for aggravated battery with a deadly weapon, the wall, must be reduced to a battery.
Moreover, because the trial evidence in the instant case reflects that the two convictions arise from the same continuous criminal act or episode, one of the convictions must be vacated. See Olivard v. State, 831 So. 2d 823, 824 (Fla. 4th DCA 2002)(defendant could not be convicted of both aggravated battery causing great bodily harm and disfigurement and battery as a lesser included offense of battery with a deadly weapon where the episode giving rise to the convictions occurred against the same victim, in the same location, and within the course of one continuous episode); see also M.T. v. State, 699 So. 2d 349, 349 (Fla. 3d DCA 1997)(Court found that defendant’s action was a single incident episode where defendant pushed, struck, and swung an object at victim.).
Accordingly, we reverse defendant’s aggravated battery with a deadly weapon conviction, the wall, and reduce it to battery, and remand the matter to the trial court with directions to vacate one of defendant’s battery convictions and resen-tence defendant.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Henry v. State, 930 So. 2d 716 (Fla. 1st DCA 2006)…him for both of the offenses for which he was convicted violates double jeopardy. The State concedes the two convictions arose from the same continuous criminal episode. Thus, the misdemeanor battery conviction must be vacated. See Zapata v. State, 905 So. 2d 944, 945 (Fla. 3d DCA 2005) (holding where “two convictions arise from the same continuous criminal act or episode, one of the convictions must be vacated”); see also State v. Barton, 523 So. 2d 152, 153 n. 3 (Fla.1988) (“In cases involving convictions…
-
Weaver v. State, 219 So. 3d 229 (Fla. 3d DCA 2017)…ode as Count One, involving a continuous series of evénts occurring over a matter of a few minutes with no temporal or spatial break.' The trial court therefore properly dismissed Counts Two and Three on double jeopardy grounds. See Zapata v. State, 905 So. 2d 944 (Fla. 3d DCA 2005) (holding double jeopardy barred convictions for two counts of battery, where defendant’s acts constituted a single criminal episode upon a single victim, in a continuous series of events: defendant grabbed the victim by her legs a…
Authorities Cited
- Erickson Olivard v. State, 831 So. 2d 823 (Fla. 4th DCA 2002)
- State v. Houck, 652 So. 2d 359 (Fla. 1995)
- M.T. v. State, 699 So. 2d 349 (Fla. 3d DCA 1997)