I maintain a running list of favorable federal and Florida criminal appellate decisions on my office webpage-legal updates page.  You might want to bookmark this link and check it from time to time if you are interested in federal criminal defense.  http://www.williamkent.com/Legal%20News.html

The Supreme Court appears to be holding petitions that raise Booker "reasonableness" questions, pending decision of a case to further address Booker's remedies.  Friday, November 3, 2006 the Supreme Court granted certiorari in two new cases, Rita and Claiborne v. United States to decide whether a sentence within the guideline range is presumptively reasonable and to decide if a sentence outside the guideline range must be supported by extraordinary factors.

Please go to my web page, www.williamkent.com, for a copy of the transcript of the oral argument at the Supreme Court on the Cunningham v. California case, October 11, 2006.

Supreme Court granted certiorari June 5, 2006 in Burton v. Waddington, now styled Burton v. Stewart, a case that may determine retroactivity of Blakely and Booker for habeas purposes.  Please go to my webpage, www.williamkent.com for a copy of the transcript of the oral argument in Burton.  Note particularly pages 19-26. 

The Florida Fourth DCA has recently held in Munoz-Perez v. State, that the term "uses a deadly weapon" in the aggravated battery statute means using the weapon to commit the touching that constitutes the battery. 

If this holds up, it will be very important.  In the Munoz-Perez case the defendant was alleged to have held a knife "near" the victim's throat, but apparently not touching the throat, and on these facts the denial of the defendant's motion for judgment of acquittal was found to be reversible error:

He forced his way into the kitchen, grabbed her, and said two words she could not understand. When she screamed, he grabbed a sharp knife and held it near her throat.

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Appellant also argues that, because he never touched the victim with the knife, there was insufficient evidence to prove aggravated battery, which is defined by section 784.045(1)(a)(2), Florida Statutes (2002), as follows:

(1) (a) A person commits aggravated battery who, in committing battery:

2. Uses a deadly weapon.

The issue of whether there must be a touching with the deadly weapon in order to prove aggravated battery by using a deadly weapon has not been decided by any of the cases cited by the appellant or the state. Appellant relies on three cases in which the defendant was holding a deadly weapon such as a knife or a firearm, but did not touch the victim with the knife or discharge the firearm, and the convictions were for attempted aggravated battery.

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Our supreme court has noted that the legislature has made a distinction between carrying a weapon and using a weapon in our statutes, in State v. Baker, 452 So.2d 927 (Fla.1984), and Owens v. State, 475 So.2d 1238 (Fla.1985). We conclude, based on these cases, that the element “uses a deadly weapon” in the aggravated battery statute means using the weapon to commit the touching that constitutes the battery. The trial court should have granted appellant's motion for judgment of acquittal on the aggravated battery charge.