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Bryan v. State2/18/2004
other provision of law, any person convicted of aggravated assault upon a law enforcement officer shall be sentenced to a minimum term of imprisonment of 3 years.
There is no dispute that the victims were law enforcement officers. The more difficult question is whether they were engaged in the lawful performance of their duties at the time of the incident. We find Nicolosi v. State, 783 So.2d 1095 (Fla. 5th DCA 2001), helpful in resolving this issue.
In Nicolosi, the fifth district reversed a conviction for battery on a law enforcement officer after the defendant slapped an off-duty police officer who was working at a nightclub checking identification. The court held that the State failed to prove *681 that the off-duty officer was engaged in "activities of an official police nature, as opposed to activities exclusively for the interest of the private employer" and was merely "on the job" for the private employer. Id. at 1096-97.
There are times when an off-duty officer may be working for a private employer, but engages in activity of an official police nature. See, e.g., State v. Hartzog, 575 So.2d 1328 (Fla. 1st DCA 1991) (off-duty officer engaged in lawful performance of his duties when assisting investigation of suspect detained by store employee for shoplifting); Hughes v. State, 400 So.2d 533 (Fla. 1st DCA 1981) (off-duty officer engaged in lawful performance of duties when arresting suspect for shoplifting). But, that did not occur here. State v. Robinson, 379 So.2d 712 (Fla. 5th DCA 1980) (off-duty officer engaged in lawful performance of his duties when assisting two other officers struggling to maintain custody of a man they just arrested).
The evidence did not establish that the officers in this case deviated from their private employment of providing security to the apartment complex to undertake activity of an official police nature. We therefore reverse the convictions for aggravated assault on a law enforcement officer and remand the case to the trial court to reduce the convictions to charges of aggravated assault. This will require the court to resentence the defendant in light of the reduced charges. We find no merit in the remaining issue raised.
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