GREGORY WAYNE ("PAPA") ABNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gregory Wayne Abner challenges his life sentence imposed as an habitual violent and habitual felony offender for attempted second degree murder. The court affirms the mandatory life sentence but reverses the classification as a habitual violent felony offender, holding that his prior Alabama conviction does not qualify as a violent felony under Florida law.
The prior Alabama felony conviction does not qualify as a violent felony because it is the functional equivalent of aggravated battery, which is not a qualifying offense under section 775.084(l)(b)(l). Appellant may only be classified as a habitual felony offender, not an habitual violent felony offender. He must be resentenced to a mandatory life term without the 15-year minimum. The mandatory life sentence itself is authorized by statute.
[1] A prior conviction from another state may qualify for habitual offender sentencing if it is the functional equivalent of a Florida qualifying offense.
[2] Aggravated battery is not a qualifying offense for habitual violent felony offender status under Florida Statutes section 775.084(1)(b)(1).
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the state has properly conceded error in that the trial court improperly sentenced appellant as an habitual violent felony offender”
Establishes that the classification as habitual violent felony offender was erroneous and conceded by the state.
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Join FLexlaw to unlock all legal intelligenceAppellant Abner was convicted of attempted second degree murder and sentenced to life imprisonment with a mandatory 15-year minimum term after being c…
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MINER, Judge.
Appellant challenges imposition of a life sentence with a mandatory 15 year term for attempted second degree murder after the trial court classified him as an habitual violent and habitual felony offender. He contends: (1) that his prior Alabama felony conviction is not one of the “qualifying offenses” enumerated by section 775.-084(l)(b)(l), Florida Statutes (1988 Supp.); (2) that the trial court improperly imposed a mandatory life sentence with a 15 year mandatory minimum; and (3) that there is some confusion which must be clarified by this court regarding whether imposition of an habitual offender sentence carries a mandatory sentence. We affirm in part, and reverse in part.
We find that the state has properly conceded error in that the trial court improperly sentenced appellant as an habitual violent felony offender. Testimony taken during sentencing supports appellant’s contention that his prior Alabama offense is the functional equivalent in Florida of aggravated battery. Because aggravated battery is not a “qualifying offense” under section 775.084(l)(b)(l), Florida Statutes (1988 Supp.), appellant can only be classified and sentenced as an habitual felony offender. Thus, appellant can only be sentenced, in accordance with section 775.084(4)(a), Florida Statutes (1988 Supp.), to a mandatory life term with no 15-year minimum. We find appellant’s point of clarification un-meritorious as the trial court’s imposition of a mandatory life sentence is authorized under sections 775.082(3)(b), Florida Statutes (1987) and 775.084(4)(e), Florida Statutes (1988 Supp.). See also Bradford v. State, 567 So. 2d 911 (Fla. 1st DCA 1990); Owens v. State, 560 So. 2d 1260 (Fla. 1st DCA 1990).
AFFIRMED in part, REVERSED in part, and REMANDED for resentencing consistent with this opinion.
SHIVERS, C.J., and WOLF, J., concur.
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Cited By
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Robinson v. State, 680 So. 2d 481 (Fla. 1st DCA 1996)…d remand the case to the trial court for further proceedings to determine whether Robinson may be sentenced as a habitual felony offender. . A consideration of the facts underlying the foreign offense appears to be appropriate. See. Abner v. State, 566 So. 2d 594, 595 (Fla. 1st DCA 1990) ("Testimony taken during sentencing supports appellant's contention that his prior Alabama offense is the functional equivalent in Florida of aggravated battery.”) (emphasis added). . The state had sought both HVFO sentenci…
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Octavious Monshovia Clark v. State, 823 So. 2d 809 (Fla. 1st DCA 2002)…ion to qualify as a predicate offense under section 775.084(l)(b)l., Florida Statutes (2000), the elements of the out-of-state offense must be identical or functionally equivalent to the elements of an enumerated Florida offense. See Abner v. State, 566 So. 2d 594, 595 (Fla. 1st DCA 1990). See also Robinson v. State, 692 So. 2d 883, 886-87 (Fla.1997); Dautel v. State, 658 So. 2d 88, 90-91 (Fla.1995). Here, both offenses contain elements requiring proof of (1) the unlawful taking of property (2) from or in the…
Authorities Cited
- Bradford v. State, 567 So. 2d 911 (Fla. 1st DCA 1990)
- Owens v. State, 560 So. 2d 1260 (Fla. 1st DCA 1990)