        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           MICHAEL SMITH,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-512

                          [September 24, 2015]

                         CORRECTED OPINION

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No. 12-008150
CF10A.

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, C.J.

   Michael Smith appeals his conviction and sentence for attempted
aggravated battery. Although the trial court reduced Smith’s charge from
aggravated battery to attempted aggravated battery, Smith argues that,
at most, the state was only able to prove the elements of a simple
misdemeanor battery. Second, Smith contends the trial court erred in
imposing a public defender fee without mentioning the imposition at the
sentencing hearing or advising Smith that he could contest the amount.
We agree on both points and reverse.

   Smith choked the victim and robbed him of his wallet. According to
the testimony at trial, Smith approached the victim on the street, put one
arm around the victim’s neck, one arm behind his head, and kicked his
legs out from under him. The victim then lost consciousness and awoke
a couple of minutes later on the sidewalk with a scratch on his elbow
and without his wallet.
   Smith was later apprehended and charged with strong arm robbery
and aggravated battery. After the state presented its case in chief, Smith
moved for judgment of acquittal on the charge of aggravated battery,
seeking to have his charge reduced to simple battery. Upon the state’s
urging, the trial court instead reduced the charge to attempted
aggravated battery.

   The jury found Smith guilty of attempted aggravated battery, but
acquitted him of robbery. The trial court sentenced Smith to a term of
imprisonment and imposed a $350 public defender fee.1

   On appeal, Smith asserts that the state failed to present evidence of
intent to inflict great bodily harm and thus did not meet its burden of
proving the elements of attempted aggravated battery. Smith urges that
the trial court erred by denying his motion for judgment of acquittal on
the charge of aggravated battery and further erred by then reducing it to
an attempt. Smith argues that only the charge of simple battery should
have been submitted to the jury.

   To prove aggravated battery, the state must present evidence that,
while committing the battery, the defendant “[i]ntentionally or knowingly
cause[d] great bodily harm, permanent disability, or permanent
disfigurement,” or used a deadly weapon, or that the victim of the battery
was pregnant and the offender knew or should have known she was
pregnant. See § 784.045(1), Fla. Stat. (2012). “Simple battery occurs
when a person actually and intentionally touches or strikes another
person against the will of the other or intentionally causes bodily harm to
another person.” C.A.C. v. State, 771 So. 2d 1261, 1262 n.1 (Fla. 2d
DCA 2000) (citing § 784.03(1)(a), Fla. Stat. (1999)) (reversing aggravated
battery conviction for entry of simple battery conviction where defendant
stabbed victim with a fork, resulting in scratches, swelling, and puncture
marks for which victim did not receive medical treatment).

   “Florida courts have generally defined ‘great bodily harm’ as ‘great as
distinguished from slight, trivial, minor or moderate harm, and as such
does not include mere bruises as are likely to be inflicted in a simple
assault and battery.’” T.W. v. State, 98 So. 3d 238, 243 (Fla. 4th DCA
2012) (citing Gordon v. State, 126 So. 3d 292, 295 (Fla. 3d DCA 2011);
Nguyen v. State, 858 So. 2d 1259, 1260 (Fla. 1st DCA 2003); Heck v.

1 Smith moved to correct the sentence, arguing that the fee was illegal because
the trial court neither stated it was imposing the fee nor offered Smith an
opportunity to contest the amount. The trial court denied the motion.

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State, 774 So. 2d 844, 845 (Fla. 4th DCA 2000); C.A.C., 771 So. 2d at
1262; Guthrie v. State, 407 So. 2d 357, 358 (Fla. 5th DCA 1981)). “[T]he
state ‘must prove more than that the victim suffered some harm.’” Id.
(quoting C.A.C., 771 So. 2d at 1262).

   In the proceedings below, the trial court accepted the state’s
argument that Zellars v. State, 707 So. 2d 345, 346 (Fla. 5th DCA 1998),
supported the charge of attempted aggravated battery, as it held that
such a charge properly went to the jury where a defendant choked a
victim.

   In Zellars, a fifteen-year-old victim threw a soda on the twenty-three-
year-old defendant after he grabbed her. She jumped into a nearby car
and Zellars followed her. He put his hands around her neck for two to
three minutes, during which time she was unable to breathe, yell out, or
push him off. When two people nearby noticed what was transpiring,
one of them ran over to another male and urged him to intervene. He did
so, and pushed Zellars away from the victim. The victim then sought
medical treatment at the emergency room. The emergency room doctor
testified at trial that the victim’s neck had not been broken, only bruised,
but that it is possible for a strong person to break someone’s neck or
crush someone’s trachea or larynx by choking them, which injuries could
be serious and life-threatening. Zellars was convicted of attempted
aggravated battery.

   On appeal, Zellars argued the trial judge erred by not granting his
motion for judgment of acquittal because there was insufficient or no
evidence that he intended to cause the victim great bodily harm. The
appellate court held that the question of intent was properly resolvable
by the jury. Id. at 346. In so holding, the court noted that proof of
Zellars’ intent was circumstantial, stemmed from witness testimony
about his actions, and that “[h]e was much larger and older than the
victim; the victim was strangled for three minutes and could not cry out
or breathe; and he was only stopped from continuing to strangle her by
the intervention of another man.” Id.

   Here, there was no evidence to support Smith’s intent to cause great
bodily harm and no evidence as to the duration of a choke; only that any
type of “choking” subsided when the victim lost consciousness. There
were no eyewitnesses, and the record does not indicate that there was a
significant size disparity between Smith and the victim. Unlike the
victim in Zellars, the victim here did not seek medical treatment and
there was no testimony from a medical expert that Smith’s actions could
have resulted in serious and life-threatening injuries to the victim. Here,

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the victim had a single scratch on his arm.

    Because the state failed to present evidence that Smith intended to
cause the victim great bodily harm, the trial court should have reduced
the charge to simple battery instead of attempted aggravated battery.
Accordingly, we reverse Smith’s conviction and remand for the trial court
to find Smith guilty of simple battery and resentence him accordingly.

   Although the issue concerning a public defender fee is rendered moot
due to our instruction to resentence Smith, we discuss it to ensure the
error is not repeated. As contended by Smith, the trial court erred in
imposing a public defender fee without notice.

    Florida Rule of Criminal Procedure 3.720(d)(1) provides:

       If the accused was represented by a public defender or other
       court appointed counsel, the court shall notify the accused
       of the imposition of a lien pursuant to section 938.29,
       Florida Statutes. The amount of the lien shall be given and a
       judgment entered in that amount against the accused.
       Notice of the accused’s right to a hearing to contest the
       amount of the lien shall be given at the time of sentence.

   Here, the trial court did not notify Smith that it was imposing the
public defender fee, nor of his right to a hearing to contest the amount of
the fee. Should the court impose the fee when resentencing Smith, the
court is obligated to provide Smith with notice of the fee and of his right
to a hearing to contest the amount at the time of resentencing.2 See id.

    The remaining issues raised by Smith either lack merit or are moot in
light of our reversal.

    Reversed and remanded with directions.

KLINGENSMITH, J., concurs.
FORST, J., concurs in part and dissents in part with opinion

FORST, J., concurring in part and dissenting in part.


2 Although not specifically raised by Smith on appeal, we take note of Florida
Rule of Criminal Procedure 3.111(b)(5)(A), which requires a trial court to notify
a criminal defendant of the possibility of a public defender lien before the initial
appointment of the public defender.

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   I concur with respect to the holding that the trial court erred in
imposing a public defender fee without notice. However, I respectfully
disagree with the majority opinion that the trial judge erred in reducing
the charge of aggravated battery to attempted aggravated battery rather
than simple battery. Florida Rule of Criminal Procedure 3.510(b) states
in pertinent part that “[t]he judge shall not instruct on any lesser
included offense as to which there is no evidence” (emphasis added). In
the instant case, I cannot conclude that there was “no evidence” on
which a jury could find the defendant guilty of attempted aggravated
battery.

   The victim testified that he had left the bus terminal and had begun
walking to work when a man he later identified as Appellant Michael
Smith approached him on the sidewalk and asked for a cigarette. The
victim pulled out a cigarette and gave it to him. Smith asked the victim
“do you believe in God,” and the victim responded “sometimes.” After
taking a step and a half away from Smith, the victim felt an arm around
his neck, another arm behind his head, and his legs “being kicked out
from under” him. Several minutes later, the victim awoke on the
sidewalk. He noticed that his wallet and cigarettes were gone and that
there was blood coming from a cut on his arm.

    As noted in the majority opinion, in response to Smith’s motion for
judgment of acquittal on the charge of aggravated battery, the trial court
reduced the charge to attempted aggravated battery and the jury entered
a verdict of guilty. On appeal, Smith raises the following question: does
the record support the trial court’s decision to submit the charge of
attempted aggravated battery to the jury; i.e., was there any (the opposite
of no) evidence presented during the state’s case, viewed in a manner to
affirm the trial court’s decision, that Smith intended to cause the victim
great bodily harm, permanent disability, or permanent disfigurement as
required by section 784.045(1)(a)1, Florida Statutes (2012), when he
applied this chokehold3 to the victim?

   A “sleeper hold” is a finishing move in professional wrestling. A
professional wrestling sleeper hold is not intended to cause the victim
great bodily harm, as professional wrestling is choreographed
entertainment.   A chokehold applied by a mugger on a sidewalk,


3 “[A] method of holding someone by putting your arm around the person’s neck
with enough pressure to make breathing difficult or impossible.” Chokehold,
MERRIAM-WEBSTER,         http://www.merriam-webster.com/dictionary/chokehold
(last visited Sept. 2, 2015).

                                     5
however, is very real. As U.S. Supreme Court Justice Thurgood Marshall
described:

      It is undisputed that chokeholds pose a high and
      unpredictable risk of serious injury or death. Chokeholds
      are intended to bring a subject under control by causing
      pain and rendering him unconscious. Depending on the
      position of the officer’s arm and the force applied, the
      victim’s voluntary or involuntary reaction, and his state of
      health, an officer may inadvertently crush the victim’s
      larynx, trachea, or thyroid. The result may be death caused
      by either cardiac arrest or asphyxiation. An LAPD officer
      described the reaction of a person to being choked as
      “do[ing] the chicken,” in reference apparently to the reactions
      of a chicken when its neck is wrung. The victim experiences
      extreme pain. His face turns blue as he is deprived of
      oxygen, he goes into spasmodic convulsions, his eyes roll
      back, his body wriggles, his feet kick up and down, and his
      arms move about wildly.

City of Los Angeles v. Lyons, 461 U.S. 95, 116-18 (1983) (Marshall, J.,
dissenting) (footnote and citations omitted);4 see also Keyes v. State, 95
So. 3d 280, 282-83 (Fla. 4th DCA 2012) (noting that the medical
examiner who testified “discussed a study showing that a
disproportionate number of middle-aged men died when a sleeper hold
was applied”); Zellars v. State, 707 So. 2d 345, 347-48 (Fla. 5th DCA
1998) (Cobb, J., concurring) (“It is an obvious fact that death can result
from choking; that could be judicially noted without any medical
testimony at all.”).

   In Zellars, the concurring judge’s decision to join in affirming the
attempted aggravated battery conviction was premised on “one factor,
and that [was] the state’s evidence that Zellars did not voluntarily release
the victim but retained his grip for some two to three minutes until


4 Lyons involved a claim for injunctive relief filed by an individual who was
injured as the result of a chokehold administered by a Los Angeles police
officer. Although Justice Marshall wrote for a four-Justice minority with
respect to the injunction issue, there is nothing in the majority’s opinion that
conflicts with Justice Marshall’s narrative on the risks associated with use of a
chokehold. In fact, the Court’s majority opinion noted that, in the five years
following the filing of Lyons’s complaint, there had been fifteen deaths
associated with the administration of chokeholds by the Los Angeles police.
Lyons, 461 U.S. at 100.

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physically forced away by an intervening third party, with whom he then
engaged in a fight.” Id. at 348. In the instant case, Smith apparently
released his grip only after the victim lost consciousness, at which time
he dropped the victim to the ground with such force as to draw blood
from his arm. Instead of an intervening third party causing the release
of the assailant’s grip, the intervening event in this case was the victim’s
loss of consciousness.

    Sometimes, as may be the case here, the loss of consciousness is for a
small amount of time and no “great bodily harm” results. At other times,
as set forth by Justice Marshall’s Lyons opinion, the loss of
consciousness is permanent. Retaining a chokehold/sleeper hold on an
individual until the victim loses consciousness is inherently dangerous
and clearly demonstrates such a reckless disregard for the victim’s well-
being that a jury could use it as circumstantial evidence of intent on the
part of an individual who did not know the victim and was, in fact, about
to rob him (thus, there was no possibility that Smith and the victim were
merely “roughhousing”). “[I]ntent is a jury question, not properly decided
on a motion to dismiss . . . that cannot be ascertained from direct
evidence but only inferred from the acts of parties and surrounding
circumstances.” State v. Franchi, 746 So. 2d 1126, 1128 (Fla. 4th DCA
1999). As such, there was no error in the trial court sending the charge
of attempted aggravated battery to the jury. Accordingly, I dissent.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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