Contrary to popular belief, there is no misdemeanor crime of domestic violence battery in Florida. A thorough review of the statutes supports this shocking conclusion. Stated another way, Florida does not recognize “domestic violence battery” as a crime, only misdemeanor battery.[i]
Unenhanced battery is a first-degree misdemeanor.[ii] Contrary to years of mistaken popular belief and local practice, Florida does not have a crime called “domestic violence” (simple) battery misdemeanor. It is not a thing; it does not exist. And no one can be convicted of it because it is a non-existent offense under any circumstances. Ever.
Without exception, a person cannot be convicted of a non-existent offense in Florida.[iii] Additionally, a person cannot agree to be convicted of and/or plead to a non-existent offense in Florida. [iv] As far as the Florida Supreme Court is concerned, conviction of a non-existent criminal offense in Florida is a fundamental error.[v]
It is well-established that criminal statutes are to be strictly construed (without exception) against the government and in-favor of the accused.[vi] Further, the courts are not free to make up criminal offenses (or create local criminal practices outside of the established statutes). To do so would be to violate the separation of powers between the branches of government.[vii] Only the Legislature (with the governor’s ratifying signature (or a majority veto override in both houses)) can enact a criminal statute.
In fact, criminal statutes cannot be created by local practice or common usage. It is not a thing. Any judicially created criminal statute (or conviction by a judicially created criminal statute) is unconstitutional. Period.[viii]
In Florida, there is battery, §784.03, Fla. Stat., and there is domestic violence battery by strangulation (a felony offense), §784.041(2), Fla. Stat. Putting aside that one is a misdemeanor and the other is a felony, the two offenses are vaguely similar. The elements of simple misdemeanor battery do not concern itself with any special relationship between the batteror and batteree; whereas domestic violence battery by strangulation absolutely concerns itself with the relationship between the batteror and batteree in that it must be proven that the batteror and batteree are either family, household members, or in a dating relationship. The latter offense further limits the battery to only strangulation as defined in the statute and not a simple touch or strike.
A plain language comparison of §784.03(1) and §784.041(2), Fla. Stat., clearly demonstrates that the latter offense makes “domestic-ness” an element of the offense (and not of the former offense). Section 784.03(1), Fla. Stat., reads in pertinent part:
784.03 Battery; felony battery.—
(1)(a) The offense of battery occurs when a person:
1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.
(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Id. On the other hand, §784.041(2), Fla. Stat., proscribes the felony offense of “domestic battery by strangulation.” Section 784.041(2), Fla. Stat., reads in pertinent part:
(2)(a) A person commits domestic battery by strangulation if the person knowingly and intentionally, against the will of another, impedes the normal breathing or circulation of the blood of a family or household member or of a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person. This paragraph does not apply to any act of medical diagnosis, treatment, or prescription which is authorized under the laws of this state.
(b) As used in this subsection, the term:
1. “Family or household member” has the same meaning as in s. 741.28.
2. “Dating relationship” means a continuing and significant relationship of a romantic or intimate nature.
(3) A person who commits felony battery or domestic battery by strangulation commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History.—s. 1, ch. 97-183; s. 1, ch. 2007-133.
Id. Section 784.041, Fla. Stat., purposely adds a domestic element to the charge which must be proven beyond a reasonable doubt at trial or stipulated to during a plea for the accused to be convicted. Section 784.041(2), Fla. Stat., is new and was passed in 2007 (or nearly 175 years after the battery statute was adopted in Florida). On the other hand, §784.03, Fla. Stat. (simple battery), has no such “domestic-ness” element proof.[ix]
By way of further comparison, a review of the standard jury instructions for these offenses shows a massive difference between the offenses.[x] The battery instruction reads:
§784.03, Fla. Stat.
To prove the crime of Battery, the State must prove the following element beyond a reasonable doubt:
Give 1 and/or 2 depending on the charging document.
- (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will.
- (Defendant) intentionally caused bodily harm to (victim)
Give only if applicable. Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013).
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.
Give only if applicable. Clark v. State, 783 So.2d 967 (Fla. 2001)
A battery may be found as a result of the intentional touching or striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]
The domestic violence battery by strangulation instruction reads:
8.5(a) DOMESTIC BATTERY BY STRANGULATION
§ 784.041(2)(a), Fla. Stat.
To prove the crime of Domestic Battery by Strangulation, the State must prove the following three elements beyond a reasonable doubt:
1. (Defendant) knowingly and intentionally impeded the normal [breathing] [circulation of the blood] of (victim) against [his] [her] will [by applying pressure on the throat or neck of (victim)] [by blocking the nose or mouth of (victim)].
2. In so doing, (Defendant) [created a risk of great bodily harm to (victim).] [caused great bodily harm to (victim).]
3. (Defendant) was [a family or household member of (victim).] [in a dating relationship with (victim).]
Give as applicable.
“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
“Dating relationship” means a continuing and significant relationship of a romantic or intimate nature.
Id. Putting aside the strangulation element, the later offense requires proof of “domestic-ness” which is not an element of the misdemeanor battery offense.
The Legislature clearly understands the difference between misdemeanor battery and domestic violence battery by strangulation. The Legislature’s understanding is clearly demonstrated by the fact that domestic battery by strangulation includes as an element of the offense a domestic component. The Legislature is deemed to know the law when it enacts legislation.[xi]
Likewise, in Williams v. Jones, the Florida Supreme Court explained:
Our conclusion is further buttressed by the principle of statutory construction which provides that the Legislature is presumed to know the existing law when it enacts a statute and is also presumed to be acquainted with the judicial construction of former laws on the subject concerning which a later statute is enacted. (internal citations omitted)
Williams v. Jones, 326 So.2d 425, 435 (Fla. 1975) (emphasis added). The Court went on to explain that the legislature was deemed to be aware of the trends in the case law when it enacted the ad valorem tax. Nonetheless, the reverse must be true too as well (that the Legislature is aware that battery (domestic violence) is not a crime in Florida).
Furthermore, the Legislature has over the years created several battery reclassification statutes. These reclassification statutes reclassify with additional elements of proof a simple misdemeanor battery to all sorts of various felony offenses. The base offense is misdemeanor battery plus something or things else that need to be proven. See §784.07 (Assault or battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers; reclassification of offenses; minimum sentences), 784.074 ( Assault or battery on sexually violent predators detention or commitment facility staff; reclassification of offenses), 784.075 (Battery on detention or commitment facility staff or a juvenile probation officer), 784.076 (Battery on health services personnel), 784.08 (Assault or battery on persons 65 years of age or older; reclassification of offenses; minimum sentence), 784.081 (Assault or battery on specified officials or employees; reclassification of offenses), 784.082 (Assault or battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee; reclassification of offenses), and 784.083 (Assault or battery on code inspectors), Fla. Stats. It is hard to argue (or even suggest) that the Legislature was not aware that there was no such thing as misdemeanor “domestic violence” battery when it has created at least eight (8) reclassification statutes for assault and battery (not including aggravated battery …etc., that has slightly different elements of proof).
It may be suggested that §741.28, Fla. Stat., corrects this problem. Unfortunately, §741.28, Fla. Stat., cannot correct the problem because that section is not a criminal statute and/or enhancement statute as written. It is not a reclassification statute. There is nothing in that section that magically authorizes §741.28, Fla. Stat., change the character or nature of the basic offense. On the other hand, §741.28, Fla. Stat., is merely classification statute outlining certain definitions that apply to that chapter.[xii] The plain language of §741.28, Fla. Stat., further clearly demonstrates that it is not a criminal statute as it does not prohibit any specific behavior and/or define a penalty for violating the section. And §741.28, Fla. Stat., as enacted cannot magically transform the misdemeanor battery into some other offense.
Further, §784.03(1), Fla. Stat., (simple battery) does not relate back to §784.03, Fla. Stat., in any fashion.[xiii] Section 741.28, Fla. Stat., appears to be merely a classifying statute for some type of reporting purposes (e.g., statistics of some kind). It defines what crimes may or may not be characterized and/or classified as “domestic violence” for some type of reporting purposes, but it goes no further.
The crime charged can only be §784.03, Fla. Stat., (a simple misdemeanor battery) and not any made up crime (like witchcraft). Any deviation from the statute results in a nullity. This error is fundamental, automatically reversible, and requires no contemporaneous objection to preserve the error.[xiv] As the Florida Supreme Court clearly annunciated in Achin, “We hold that one may never be convicted of a nonexistent crime…” 436 So.2d at 30. Achin was reversed and remanded for a new trial. Id.[xv]
Additionally, “domestic violence” is not a sentence enhancement to this battery or to a felony, like an express firearm finding is for “10-20-Life.”[xvi] Misdemeanor battery, characterized as “domestic,” does not increase the maximum statutory penalty beyond the statutory maximum of one year.[xvii] In fact, there is no fact under Florida law that can enhance the sentence of a misdemeanor battery beyond one (1) year. By operation of law, Appendi and its progeny cannot apply.[xviii] As such, “domestic violence” is not a required factual finding that the jury has to make (or a defendant must stipulate to) to allow for the sentencing court to exceed the statutory maximum sentence. The finding of “domestic-ness” is irrelevant and prejudicial to the factual determination because it is not an element of §784.03(1), Fla. Stat.[xix]
It is “manifest injustice” and “fundamental error” to be convicted of a non-existent criminal offense in Florida. The prosecution, incarceration, and levying of fines, costs, and fees of a non-existent crime serves no legitimate governmental purpose. If this situation does not define “manifest injustice,” than nothing does.
Any conviction for misdemeanor battery domestic violence prejudices the wrongfully convicted defendant in several profound ways.[xx] The obvious prejudices, inter alia, are an indelible stain and stigma on the defendant’s permanent record for an arrest for domestic violence battery, a conviction (regardless of withhold of adjudication or not) for domestic violence battery, loss of money in terms of securing a surety bond, payment of court costs, cost of supervision, cost of prosecution …etc., and an automatic federal prohibition on the possession, use, and/or enjoyment of the Petitioner’s second amendment rights under 18 U.S.C. §922.
Under 18 U.S.C. §922, the conviction in this case for this non-existent criminal offense automatically disqualifies defendant from owning, possessing, and/or transporting a firearm. Further, the defendant is automatically barred from certain federal employment with the government where the employee must ship, transport, possess, or receive firearms or ammunition.[xxi]
This is an unbelievable breach of Florida’s criminal justice system.[xxii] The wrongfully convicted defendant has been convicted of a crime that does not exist and “but for” seeking legal assistance on another matter this egregious legal error would not have seen the light of day. This is not a scrivener’s error; there is no potential remedy that can correct this manifest injustice other than withdrawing the plea, vacating the conviction, and zeroing out the case.[xxiii] In Jolly, the Fifth District explained:
As the negotiations were based on a material mistake of law, the plea was invalid and no legal sentence could be imposed. The remedy, in these circumstances, is not to correct the sentence but to set aside the plea (and the consequent judgment and sentence), …
Id, at 56. The remainder of the paragraph discusses reinstituting the original charges before the illegal plea in Jolly occurred. Id.
In the case of the wrongfully convicted defendant, the Jolly outcome is impossible and cannot happen here because the wrongfully convicted defendant was arrested and charged with a non-existent offense. There is no unwinding it. There is no resurrecting the offense or recalibrating the past with a guess as to what the charge should have been or might have been or ought to have been. This is not some strange historical mistake in negotiating that led to the defendant pleading to an offense that does not exist based on an original offense that does legally exist. The offense the defendant was arrested and charged with an offense that has never existed. The charge may as well have been witchcraft. And there is no special Delorean to back in time to fix this horrible injustice.
The only viable remedy is completely unwinding this conviction and wiping it from all ledgers.
Additionally, the system must return all moneys excised and retained from the wrongfully convicted defendant because the court system, clerk, sheriff, local law enforcement, probation, and prosecutors have all been unjustly enriched with the defendant’s money that these government agencies have no lawful right to under law.[xxiv]
Further, this matter is a not a scrivener’s error (fancy word for typo); it is a fundamental breakdown of the criminal system. If being convicted of a non-existent criminal offense does not qualify as a “manifest injustice” warranting immediately relief in the form of the plea being withdrawn, then there is hardly legal scenario that one might imagine that might fit the bill.
Understand the importance, anyone arrested and/or convicted by plea or by trial in the past 40-years to domestic violence battery may be entitled to have the arrest and/or conviction wiped from the records. These individuals may be entitled to lawfully carry a firearm without fear of criminal reprisal from the federal government. This cannot be stated enough – there is no misdemeanor crime of domestic violence battery in Florida (until the Legislature decides to enact it). And even then it cannot go backwards in time to correct this complete misfortune. See violations of ex post facto.
NOTE: the Trial Dog does not encourage, accept, and/or condone violence and/or domestic violence in general. In most instances, violence is unacceptable. Equally as unacceptable, unfair, and repugnant to our constitutional form of government is being convicted of a crime that does not exist. These individuals might as well have been convicted of witchcraft (which is not a thing and does not exist). As it stands, misdemeanor domestic violence battery is not a crime in Florida, and everyone arrested and/or convicted of it may be entitled to relief immediately.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
If you have been arrested and/or convicted of misdemeanor domestic violence battery in the past 40-years, or have a friend, or family member that has, please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 immediately to discuss your case. You may be entitled to relief. We cannot help you attempt to clear this up unless you contact the office.
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No. 21-006 DV Battery
[i] See Swanson v. Allison, 617 So.2d 1100 (Fla. 5th DCA 1993); and Crockett v. State, 91 So.3d 872 (Fla. 2d DCA 2012), rehearing denied. (Misdemeanor domestic violence battery not a crime).
[ii] See §784.03, Fla. Stat.
[iii] See Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1982), rehearing denied, approved, Jordan v. State, 438 So.2d 825 (Fla. 1983); State v. Sykes, 434 So.2d 325 (Fla. 1983); Achin v. State, 436 So.2d 30 (Fla. 1982), rehearing denied (1983) (“We hold that one may never be convicted of a nonexistent crime….”); and Plummer v. State, 455 So.2d 550, rehearing denied (1984).
[iv] See Hoover v. State, 511 So.2d 629 (Fla. 1st DCA 1987), rehearing denied; Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006), rehearing denied; and Jordan v. State, 801 So.2d 1032 (Fla. 5th DCA 2001).
[v] See Achin, supra. The Fourth District in Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009) defined “fundamental error” as follows: “The ‘fundamental error’ terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox, [760 So.2d at 95-96]. Nevertheless, some errors, which have also been referred to as ‘fundamental errors,’ are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy).”
[vi] See §775.021, Fla. Stat., (Rules of construction (e.g., the Rule of Lenity)); McLaughlin v. State, 721 So.2d 1170 (Fla. 1998); and Wallace v. State, 860 So.2d 494 (Fla. 4th DCA 2003), rehearing denied.
[vii] See Art. II, Sec. 3, Fla. Const. (1968 Revision). SECTION 3. Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.
[viii] It does not matter which rule or philosophy of statutory construction the reviewing court applies (i.e., textualism, originalism, spirit of the law, plain meaning, …etc.) there is no domestic violence battery misdemeanor in Florida until the Legislature decides to make it a crime.
[ix] The undersigned fully admits that it has been a nearly universal practice all over Florida to prosecute (simple) battery under some pseudo-guise of “domestic violence (battery).” Nevertheless, it is not a thing. The practice has grown up over decades, but it is not sanctioned by the Legislature and codified as a crime. As such, battery (domestic violence) is not a thing, only (simple) battery. The undersigned understands and appreciates that this may be difficult to accept at first blush, but the black and white law could not be clearer. A crime cannot be enacted by judicial practice (outside of contempt). The undersigned fully understands and appreciates that this contention is no small problem in Florida. As the current illegal practice goes, an arrest and/or conviction for “domestic violence” battery has far-reaching collateral consequences from firearm restrictions to certain license restrictions and other statutory penalties, costs, fines. Nevertheless, there is no criminal offense in Florida codified as “domestic violence battery.”
[xi] See B.K. v. S.D.C., 122 So.3d 980 (Fla. 2d DCA 2013) (However, “the legislature is presumed to know the existing law when a statute is enacted, including judicial decisions on the subject concerning which it subsequently enacts a statute.” Seagrave v. State, 802 So.2d 281, 290 (Fla. 2001) (internal quotation marks omitted))
[xii] The undersigned surmises that the local sheriffs/law enforcement, state attorney offices, clerks, and court administrative offices used the “domestic violence” classification to detail and catalogue the instances of domestic violence, but for all the years that this practice has been employed there has never been an offense called battery (domestic violence) and there isn’t a Legislatively enacted crime with a domestic violence element. Ergo, there is no such crime of battery (domestic violence).
[xiii] See Exposito v. State, 891 So.2d 525, 528 (Fla. 2004) (courts cannot add words not added by the legislature). See also Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005) (statute is “clear and unambiguous,” courts cannot look outside the plain language or resort to other rules of statutory construction).
[xiv] See Jordan, supra; Plummer, supra.
[xv] The Florida Supreme Court in Achin also reviewed the matter for “invited error.” Id. “Invited error” is a situation where the defense sets up an error, has the court commit the error, makes no objection, and then attempts to benefit from the error on appeal having “invited” the error.
[xvi] See §775.087, Fla. Stat.
[xvii] The statutory maximum for a misdemeanor battery is one (1) year of probation or one (1) year in the county jail and/or up to a $1000.00 fine U.S. Currency. See §775.082, 775.083, and 775.04, Fla. Stat. It cannot be made longer by the court or any jury finding.
[xviii] See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
[xix] See §90.403, Fla. Stat. (Irrelevant evidence is not admissible).
[xx] The arrest alone for a non-existent offense listed on the various sheriff’s office websites, the clerk’s websites …etc. are ongoing and continuing torts – libel, libel per se, and slander. Additionally, the sheriff, state attorney, and local clerks update their arrests and convictions both with the Florida Crime Information Computer (“FCIC”) (maintained by the Florida Department of Law Enforcement (“FDLE”)) and the National Crime Information Computer (“NCIC”) (maintained by the Federal Bureau of Investigations (“FBI”). Law enforcement agencies all over the country and around the world access that information to make decisions daily about thousands of consequential and inconsequential matters. And this information has been abhorrently incorrect for 40 plus years.
[xxi] See Public Law 1-4-208 Omnibus Consolidated Appropriations Act of 1997. Additionally, a conviction for this non-existent criminal offense may affect a person’s professional license with the respective licensing board.
[xxii] It goes without saying that there are potentially millions of convictions in Florida for this non-existent criminal offense.
[xxiii] Like in civil court, the wrongfully convicted is most likely entitled to interest on the money that was unconstitutionally detained for all these years.
[xxiv] See Nelson v. Colorado, 581 U.S. – – -, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017) (Petitioners have an obvious interest in regaining the money. The state may not retain these funds simply because their convictions were in place when the funds were taken; once the convictions were erased, the presumption of innocence was restored. The Fourteenth Amendment’s “due process” guarantee requires complete repayment to make the Petitioner whole.) See also Eighth Amendment (excessive fines); and Art. I, Sec. 17 and 19, Fla. Const.