J.R.H., a child, Appellant, v. STATE (2006)

Appellant, J.R.H., punched a middle school classmate, and the state charged him with felony battery pursuant to section 784.03(1) and (2), Florida Statutes (2005).   The felony charge was based on appellant's plea of guilty to a battery charge in an earlier case, for which the court withheld adjudication.

The trial court found appellant guilty of felony battery, over his objection that the state could not establish the felony because it had not proved that he had “one prior conviction for battery” within the meaning of section 784.03(2).   Appellant relied on J.E.A. v. State, 842 So.2d 851 (Fla. 2d DCA 2002), to argue that the state was required to establish that he had been previously adjudicated delinquent of battery in order to obtain a felony battery conviction.

Recently this court aligned itself with J.E.A. in holding that the state could not utilize a prior withhold of adjudication of delinquency as a “conviction” to elevate a simple battery to felony battery.  W.J.H. v. State, 922 So.2d 458, 459 (Fla. 4th DCA 2006).

Based on W.J.H., we reverse the felony battery disposition and remand with instructions that the trial court enter a new disposition order for the crime of simple battery.

PER CURIAM.

WARNER, GROSS and HAZOURI, JJ., concur.