State v. Weaver

In this case, we consider whether an erroneous jury instruction concerning the crime of battery constituted fundamental error. The defendant was charged with battery on a law enforcement officer. Battery can be committed either by intentionally touching or striking another or by causing bodily harm to another. The information charged the defendant only with intentionally touching or striking a law enforcement officer, and at trial the State presented evidence only on that form of battery. The trial court, however, instructed the jury on both forms. On appeal, the district court held that the instruction constituted fundamental error, but certified to us the following question as one of great public importance: "Does a trial court commit fundamental error when it instructs a jury regarding both bodily harm battery on a law enforcement officer and intentional touching battery on a law enforcement officer when the information charged only one form of the crime and no evidence was presented nor argument made regarding the alternative form?" Weaver v. State, 916 So. 2d 895, 898-99 (Fla. 2d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we answer "no" to the certified question and therefore quash the district courts decision.