Trapp v. State

District Court of Appeal of Florida

Trapp v. State

884 So. 2d 434, 2004 Fla. App. LEXIS 14274, 2004 WL 2179164

District Court of Appeal of Florida·Decided September 29, 2004·No. No. 3D03-2005·Published

Opinion

PER CURIAM.

Affirmed in part, reversed in part. We find no abuse of discretion in the denial of the motion for mistrial made following the prosecutor’s allegedly improper comment on Trapp’s right to remain silent and thus affirm the conviction. However, we conclude that the trial court erred in sentencing him as a violent career criminal because spitting on a police officer is not a qualifying offense for sentencing as a violent career criminal. See Johnson v. [435]*435State, 858 So.2d 1071 (Fla. 3d DCA 2003) (holding that spitting on a law enforcement officer is not a current qualifying offense for sentencing as a violent career criminal).

Affirmed in part, reversed in part, and remanded for a new sentencing proceeding.

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PER CURIAM.

Affirmed in part, reversed in part. We find no abuse of discretion in the denial of the motion for mistrial made following the prosecutor’s allegedly improper comment on Trapp’s right to remain silent and thus affirm the conviction. However, we conclude that the trial court erred in sentencing him as a violent career criminal because spitting on a police officer is not a qualifying offense for sentencing as a violent career criminal. See Johnson v. [435]*435State, 858 So.2d 1071 (Fla. 3d DCA 2003) (holding that spitting on a law enforcement officer is not a current qualifying offense for sentencing as a violent career criminal).

Affirmed in part, reversed in part, and remanded for a new sentencing proceeding.

Trapp v. State, 884 So. 2d 434, 2004 Fla. App. LEXIS 14274, 2004 WL 2179164 (Fla. Ct. App. 2004).

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Opinion

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