
    STATE of Florida, Appellant, v. John CONLEY, Appellee.
    No. 4D00-1740.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2001.
    Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellant.
    Greg Lerman of Law Offices of Greg S. Lerman, West Palm Beach, for appellee.
   DELL, J.

The State appeals an order dismissing a charge of felony battery against appellee. We reverse.

On January 27, 2000, appellee was charged by information with felony battery alleged to have occurred on December 25, 1999. On December 26, 1999, the trial court entered an order of no contact with the victim. On April 5, 2000, appellee filed a motion to terminate the no contact provision. In support of the motion, appellee attached an affidavit of the victim in which she stated that she had been the aggressor during the incident, and that appellee had acted in self-defense. She further stated that she was intoxicated during the incident and asked that the charge against appellee be dropped. The State’s case consisted of the victim’s initial statement to the police, the victim’s signed statement given to police at the hospital, and the sworn written statements of two eyewitnesses to the battery.

An adversarial preliminary hearing was heard on April 27, 2000, on the charge of felony battery. The State appeared at the hearing and advised the trial court that its witnesses had not been subpoenaed due to an office problem, and did not think the cause should proceed without them. The State further advised the trial court that there was overwhelming evidence to support the charge and asked that the cause be set for trial. The trial court asked to hear from the victim, who was present.

The trial court inquired whether she or appellee had made the initial physical contact, whether appellee had struck her in retaliation for her conduct, and whether she was saying she did not want to press charges. The victim stated that she had never wanted to press charges against ap-pellee. When the trial court asked her if she had consented to the battery, the victim stated that she had. After the State concluded its cross-examination, the trial court pronounced: “Inasmuch as she had indicated under oath that she consented to the action there is no probable cause. The case is dismissed.” The State objected and now appeals the dismissal of the charge of felony battery against appellee.

Florida Rule of Criminal Procedure 3.133(b), “Adversary Preliminary Hearing” provides:

(5) Action on Hearing. If from the evidence it appears to the magistrate that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate shall cause the defendant to be held to answer to the circuit court; otherwise, the magistrate shall release the defendant from custody unless an information or indictment has been filed, in which event the defendant shall be released on recognizance subject to the condition that he or she appear at all court proceedings or shall be released under a summons to appear before the appropriate court, at a time certain. Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial.

In State v. Hollie, 736 So.2d 96 (Fla. 4th DCA 1999), this court addressed the trial court’s authority to dismiss a case at a hearing conducted pursuant to Florida Rule of Criminal Procedure 3.133(b):

The information was dismissed at a preliminary hearing held to determine whether there was probable cause to detain the accused. Defendant orally moved to dismiss under rule 3.190(c)(4) — i.e., that there were “no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” Fla. R.Crim.P. 3.190(c)(4). Defendant concedes that the trial court does not have authority to dismiss a case under this rule at a preliminary hearing. See Fla. R.Crim.P. 3.138(b)(5) (if probable cause not established at preliminary hearing after information filed, court may only release defendant from custody upon own recognizance).

Id. at 97.

In this case appellant did not move to dismiss, orally or in writing. The hearing was an adversarial preliminary hearing to determine probable cause. Therefore, the trial court did not have authority to dismiss the charges against appellee. Hollie, 736 So.2d at 97; Fla. R.Crim. P. 3.133(b)(5); also see State v. Brown, 416 So.2d 1258 (Fla. 4th DCA 1982).

Accordingly, we reverse the order of dismissal and remand this cause for further proceedings.

REVERSED AND REMANDED.

TAYLOR, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur. I would add that the trial court’s order stated that the prosecutor agreed at a hearing on April 6, 2000, that the adversarial hearing could result in a dismissal of the case. However, nowhere in that transcript was any such statement made.

Furthermore, while not argued by appellant, I think it is important to address the court’s substantive ruling that consent is a defense to battery. This was a case of domestic violence. The incident was observed by two witnesses who saw appel-lee’s vehicle swerving on 1-95. They saw appellee and the victim struggling inside the car and saw appellee smash the victim’s head into the windshield of the vehicle. When the eyewitnesses arrived at their home, they again saw appellee and the victim. Appellee struck the victim, charged after her when she attempted to flee, grabbed her by the hair, dragged her, and punched her several more times.

The victim was discovered by an officer as she staggered down the road, with blood coming from her nose. Before she lost consciousness, the victim told the officer that appellee threw her out of his truck as it was moving.

The state had statements from both eyewitnesses, evidence of the victim’s injuries, and physical evidence from the vehicle. Unfortunately, because of the rescheduling of the adversarial hearing, the support staff had not gotten out the subpoenas for the witnesses. The state asked for a continuance, but the court decided to hear from the victim. The victim had filed an affidavit stating that she was drunk, the altercation was her fault, and all of her injuries were the result of her own doing. This directly contradicted statements she made the night of the incident. The court itself interrogated the victim and based upon her responses that she was the instigator of the fight and therefore “consented” to the battery, dismissed the charges.

The general view is that “consent” is not a defense to battery, except in cases of sexual battery. See Lyons v. State, 437 So.2d 711, 712 (Fla. 1st DCA 1983); W.E. Shipley, Consent as Defense to Charge of Criminal Assault and Battery, 58 A.L.R.3d 662 § 2(a) (1974) (“[T]he courts have usually taken the view that since the offense in question involved a breach of the public peace as well as an invasion of the victim’s physical security, the victim’s consent would not be recognized as a defense, at least where the battery is a severe one.”). “The statutory elements of battery are: an actual and intentional touching or striking of another person against the will of the other person; or intentionally causing bodily harm to an individual.” Hamrick v. State, 648 So.2d 274, 276 (Fla. 4th DCA 1995)(emphasis added); accord § 784.03(l)(a), Fla. Stat. (1999). In this case, while the court led the victim into saying she “consented” to being struck, what the court asked was:

THE COURT: Who, which one of you initially had physical contact?
THE WITNESS: I did.
THE COURT: And if you were struck in the process, it was in retaliation of what you did?
THE WITNESS: Yes. He was actually trying to stop me from wrecking the victim [sic]; he was driving and I’m grabbing the steering wheel jerking it.

After asking the victim if she wished to press charges, which she did not, the court asked, “So are you consenting to the action that he took that morning?” To which she said, “yes.”

A view of the law that a victim of domestic violence can consent to the batteries and injuries perpetrated on him or her is incompatible with both the general law of battery and the specific legislative intent expressed in section 741.2901(2), Florida Statutes (1999), which states, “It is the intent of the Legislature that domestic violence be treated as a criminal act rather than a private matter.” But even if this were not a domestic violence matter, civilized society cannot permit individuals to “consent” to the type of injury inflicted in this case. While the victim recanted her statement to the police regarding her injuries, a common occurrence in domestic violence situations, those issues are for the trier of fact to sort through in light of all of the evidence in the case. In any event, because consent was not a defense, the court’s ruling was not only proeedurally wrong but substantively wrong as well.  