VICTOR RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Victor Rodriguez appeals an order denying his motion to correct an illegal sentence imposed as a violent career criminal. The court affirmed the denial, holding that burglary of an unoccupied structure qualifies as a forcible felony under Florida's violent career criminal statute because burglary is enumerated in the forcible felony definition without distinction between occupied and unoccupied structures.
Burglary is an enumerated forcible felony under section 776.08 without distinction between occupied and unoccupied structures, and therefore qualifies as a predicate offense for violent career criminal sentencing. The phrase requiring use or threat of physical force applies only to non-enumerated felonies, not to the listed enumerated crimes.
[1] Burglary is an enumerated forcible felony under Florida law.
[2] The definition of "forcible felony" includes all enumerated felonies, plus any additional felony that involves the use or threat of physical force or violence against an…
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Join FLexlaw to unlock all legal intelligence“Section 776.08 does not distinguish between burglary of an occupied or unoccupied structure or conveyance.”
Establishes that burglary of an unoccupied structure qualifies as a forcible felony without distinction based on occupancy status.
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Join FLexlaw to unlock all legal intelligenceRodriguez was convicted of burglary of an unoccupied structure and other offenses on October 30, 1998. He was sentenced as a violent career criminal b…
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COPE, J.
Victor Rodriguez appeals an order denying his motion to correct illegal sentence. We affirm.
Defendant-appellant Rodriguez was convicted of burglary of an unoccupied struc ture and other offenses.* On the burglary count he was sentenced as a violent career criminal.
In his motion the defendant contends that he does not actually qualify as a violent career criminal. He reaches that conclusion because his three predicate offenses were all prior convictions for burglary of an unoccupied structure. He contends that these offenses do not qualify him as a violent career criminal.
The violent career criminal statute provides, in pertinent part, that qualifying offenses include “[a]ny forcible felony, as described in s.776.08.” § 775.084(l)(c)l.a., Fla. Stat. (Supp.1998).
Section 776.08, Florida Statutes (1997), provides:
776.08 Forcible felony. — “Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
(Emphasis added).
Because burglary is an enumerated forcible felony, it follows that the defendant qualifies under the statute. Section 776.08 does not distinguish between burglary of an occupied or unoccupied structure or conveyance. See State v. Emmund, 698 So. 2d 1318, 1319 & n. 2. (Fla. 3d DCA 1997).
The defendant points out that the final portion of section 776.08 refers to “any other felony which involves the use or threat of physical force or violence against any individual.” He contends that the phrase “involves the use or threat of physical force or violence against any individual” must be read as a limitation on all of the crimes listed in the forcible felony statute. Thus, under the defendant’s reading, a burglary would be a forcible felony only if in the particular circumstances of the crime, there had been the use or threat of physical force or violence against an individual.
We do not agree with that reading of the statute. As we view the matter, the definition includes all enumerated felonies, plus any additional felony which involves the use or threat of physical force or violence against an individual. See Hudson v. State, 800 So. 2d 627, 628-30 (Fla. 3d DCA 2001) (on motion for rehearing granted) (analyzing the non-enumerated felony of shooting or throwing a deadly missile in violation of section 790.19, Florida Statutes).
Affirmed.
*
The crime date was October 30, 1998.
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Dwon Kimble v. State, 15 So. 3d 905 (Fla. 3d DCA 2009)…PER CURIAM. Affirmed. §§ 784.084(l)(d)l.a., 776.08, Fla. Stat. (2001); Rodriguez v. State, 826 So. 2d 464, 465 (Fla. 3d DCA 2002).…
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Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002)…t violent those offenses could not be considered forcible felonies under the statute and as a result, the defendant could not be sentenced as a violent career criminal under the Gort Act. For the reasons set forth in Rodriguez v. State, No. 02-1479, 826 So. 2d 464(Fla. 3d DCA 2002), we disagree. Affirmed. GODERICH and SORONDO, JJ., concur. SCHWARTZ, Chief Judge (dissenting in part). Applying the rule of lenity, as we must, Rodriguez v. State, 773 So. 2d 1222 (Fla. 3d DCA 2000), review denied, 817 So. 2d 8…
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Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009)…da Statutes has been repeatedly rejected by this Court. See Hernandez v. State, 960 So. 2d 816, 817 (Fla. 3d DCA 2007) (citing Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002)); Diaz v. State, 837 So. 2d 436 (Fla. 3d DCA 2002); Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002). In a case strikingly similar to this one, this Court confirmed that convictions for burglary of an unoccupied structure qualify for sentencing as a violent career criminal when the burglary at issue is either the primary felony f…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hudson v. State, 800 So. 2d 627 (Fla. 3d DCA 2001)
- State v. Emmund, 698 So. 2d 1318 (Fla. 3d DCA 1997)