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DAVIS v. STATE

No. 89-1243.

565 So.2d 826 (1990)

Harry Bernard DAVIS, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fifth District.

Rehearing Denied August 22, 1990.

Attorney(s) appearing for the Case

James B. Gibson, Public Defender, and Glen P. Gifford, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

W. SHARP, Judge.

Davis appeals from his conviction for aggravated battery,1 and his enhanced habitual offender sentence of 30 years for the battery offense and resisting an officer with violence.2 He argues the state failed to charge and prove aggravated battery because the sole basis for enhancing the battery from simple to aggravated was that Davis kicked the victim with his foot. We agree and reverse in...

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