HERNANDEZ v. STATE (1998)

District Court of Appeal of Florida,Third District.

David HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.

No. 97–2666.

Decided: July 29, 1998

Before NESBITT, GERSTEN and SHEVIN, JJ.

Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant. Robert A. Butterworth, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.

We affirm defendant's convictions as to counts II and III, finding no merit as to the issue raised attacking those convictions. However, we reverse defendant's conviction as to count I, violation of a domestic violence injunction, based on Cordova v. State, 675 So.2d 632 (Fla. 3d DCA 1996), because the trial court erred in taking judicial notice “of the fact [that] the court file does reflect that the defendant was personally served with a copy of the injunction.” Pursuant to Cordova, 675 So.2d at 636, it was improper for the court to take judicial notice of the fact that defendant was served with a copy of the injunction. As service of the injunction was an element of the state's case, and the state did not prove service on defendant, defendant was entitled to a judgment of acquittal on this count.

Affirmed in part; reversed in part.

PER CURIAM.

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