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State v. Douglas11/2/2005
a. Stats. . . . ."
While section 775.087, Florida Statutes, is most frequently invoked in cases involving possession or use of a weapon, section 775.087 also provides for an enhanced penalty where, during the commission of a felony, "the defendant commits an aggravated battery . . . ." ยง 775.087(1), Fla. Stat. (1999). In the present case, there was no allegation or contention that the defendant possessed or used a weapon during the sexual battery offense. By process of elimination, the citation of section 775.087 (which is juxtaposed to an allegation that the defendant "used actual physical force likely to cause serious personal injury ") can only be a reference to the aggravated battery enhancement contained within section 775.087. That being so, sufficient connection has been shown.
The defendant argues that the law of the case doctrine bars the analysis just stated. The defense reasons that since the previous panel ruled that the original sexual battery charge was missing an essential element of the offense of aggravated battery, it is impermissible for this court now to consider that the citation of section 775.087 was necessarily a reference to the offense of aggravated battery.
We do not agree with the defense position on this point. The question for the prior panel was whether the charge of sexual battery, as written, omitted an essential element of the offense of aggravated battery. Our inquiry, by contrast, is whether there is sufficient linkage between the original and second informations so that the second information is sufficiently connected with, and properly viewed as a continuation of, the original charge.
In Adjmi, the State presented evidence relating to fourteen separate larcenies committed by the defendant. 170 So. 2d at 341. The Florida Supreme Court held that these were incorrectly charged, and should have been filed in separate informations. The court reversed the convictions and ordered a new trial. See Adjmi v. State, 254 So. 2d 812 (Fla. 1963). On remand, the original information was treated as timely for one of the offenses charged. The State filed ten additional informations covering ten of the other incidents. The ten new informations were filed over two years after the offense date, and thus beyond the then-existing statute of limitations. This court held that the new informations were sufficiently linked to the original prosecution to be viewed as a continuation thereof, and timely for limitations purposes. Adjmi, 170 So. 2d at 343.
As in Adjmi, we conclude that sufficient linkage to the original information has been shown so that the second information is properly viewed as a continuation there. Accordingly we reverse the dismissal order and remand with directions to reinstate the charge.
Reversed and remanded for further proceedings consistent herewith.
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