DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALBERT NARVAEZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-245
[January 5, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Susan Alspector, Judge; L.T. Case No. 18011191CF10A.
Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and MaryEllen M.
Farrell, Assistant Attorney General, West Palm Beach, for appellee.
KLINGENSMITH, J.
Appellant Albert Narvaez appeals his conviction and sentence for
attempted first-degree murder, aggravated assault with a deadly weapon,
false imprisonment, discharging a firearm from a vehicle, and “Battery
(Domestic).” He raises three issues on appeal; however, we find merit in
only one: whether the trial court erred in sentencing appellant on the
battery charge as described in the amended information. We reverse for
resentencing on that issue but affirm all others without comment.
The jury received the jury instruction for the “Battery (Domestic)”
charge titled “Battery F.S. 784.03,” referring to the general battery statute.
The instruction stated, “[t]o prove the crime of Battery, the State must
prove the following element beyond a reasonable doubt: [appellant]
actually and intentionally touched or struck [the victim] against her will.”
Neither party objected to the final jury instructions. The jury found
Appellant guilty on all counts, including “Battery (Domestic).”
At sentencing, the trial court treated the battery conviction as a crime
of domestic violence and sentenced appellant to 364 days in jail with credit
for time served. Appellant moved to correct his sentence under Florida
Rule of Criminal Procedure 3.800(b)(2), arguing that “Battery (Domestic)”
was a nonexistent crime and that the jury did not have the proper jury
instruction. When the trial court did not enter an order on this motion
within sixty days, this appeal followed. See Fla. R. Crim. P. 3.800(b)(2)(B).
A motion to correct a sentencing error is reviewed de novo because it
“involves a pure issue of law.” Brooks v. State,
199 So. 3d 974, 976 (Fla.
4th DCA 2016) (quoting Smith v. State,
143 So. 3d 1023, 1024 (Fla. 4th
DCA 2014)).
A first-time offender can be convicted of a first-degree misdemeanor for
committing battery. See § 784.03(1)(b), Fla. Stat. (2018); 775.082(4)(a),
Fla. Stat. (2018). For a battery to be considered under the domestic
violence statute, it must result in the “physical injury or death of one
family or household member by another family or household member.” §
741.28(2), Fla. Stat. (2018). “A domestic violence designation under
section 741.28(2) triggers mandatory minimum sentences under section
741.283.” Bethea v. State,
319 So. 3d 666, 668 (Fla. 4th DCA 2021).
In Bethea, the defendant was similarly charged with “Battery
(Domestic),” and the jury instructions also did not mention the domestic
violence statute.
Id. at 668–69. In that case, we found that the Supreme
Court’s decision in Alleyne v. United States,
570 U.S. 99 (2013), applied to
the domestic violence designation in that case:
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 Appellant. Under Alleyne, the judge
was precluded from making the domestic violence finding on
her own.
Id. at 669–70. There, we concluded that the defendant was sentenced to
misdemeanor battery, not domestic battery, despite domestic battery being
the charge submitted to the jury.
Id. Thus, the defendant was entitled to
resentencing because the jury did not make a finding regarding domestic
violence.
Id. at 666–68.
As in Bethea, the jury instruction given at appellant’s trial failed to
mention domestic violence in any way, and thus, appellant should not
have been sentenced using that designation. See
id. at 666–68.
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We reverse and remand for the trial court to correct the sentence to
misdemeanor battery. See id. at 669. At the hearing on remand,
appellant’s presence is not required for resentencing if the trial court
merely corrects the sentence to battery; the correction would only be
ministerial as the trial court would not be giving any additional
consideration to the sentence or exercising any sentencing discretion. See
Jordan v. State,
143 So. 3d 335, 339 (Fla. 2014); see also Lecroy v. State,
954 So. 2d 747, 747–48 (Fla. 4th DCA 2007).
Affirmed in part, reversed in part, and remanded with instructions.
MAY and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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