Davis v. State

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 part.

The indictment charged Davis with battery with a deadly weapon, “To-wit: The foot of Harry Davis, without intent to kill.” Proof at trial related solely to how Davis viciously kicked…