PEDRO DELSOL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Pedro Delsol appeals his conviction for burglary of an occupied dwelling and grand theft, and his sentencing as a violent career criminal. The court affirms both the conviction and sentence, rejecting the defendant's argument that prior non-violent burglaries of unoccupied structures cannot support violent career criminal sentencing.
Prior convictions for burglary, even of unoccupied structures, can constitute forcible felonies under section 775.084 and support violent career criminal sentencing. The court rejected the defendant's argument that only violent burglaries qualify as forcible felonies for this purpose.
[1] A conviction will be affirmed if the defendant's arguments concerning the conviction lack merit.
[2] A defendant's prior convictions for burglary of unoccupied structures do not preclude sentencing as a violent career criminal if other prior convictions qualify under the…
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Join FLexlaw to unlock all legal intelligence“Finding no merit in defendant's arguments concerning either his conviction or sentence, we affirm.”
Statement of the court's disposition affirming both conviction and sentence in this per curiam opinion.
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Join FLexlaw to unlock all legal intelligenceDelsol was convicted of burglary of an occupied dwelling and grand theft in the third degree. The state sought violent career criminal sentencing unde…
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[*429] PER CURIAM.
The defendant, Pedro Delsol, appeals his final judgment of conviction for the crimes of burglary of an occupied dwelling and grand theft in the third degree and his sentence as a violent career criminal. Finding no merit in defendant’s arguments concerning either his conviction or sentence, we affirm.
We affirm the conviction without discussion. As concerns the sentence, the state sought to have the defendant adjudicated and sentenced as a violent career criminal under section 775.084, Florida Statutes (1999). The state introduced certified copies of defendant’s prior criminal record which consisted of three convictions for possession of cocaine, one conviction for burglary of a dwelling, three convictions for burglary of a conveyance, one conviction for attempted burglary of a conveyance, and one conviction for burglary with an assault.
Defense counsel argued that other than the one burglary with an assault, the prior convictions were all of unoccupied structures and, therefore, since the burglaries were not 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 850 (Fla.2002), and the maxim of noscitur a sociis, as we should, see Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927), I believe that because all of the crimes listed in section 776.081 are of a violent nature, and its last sentence refers to “any other [e.s.] felony which involves the use or threat of force against any individual,” the burglary referred to must be restricted to one involving violence.
On that basis, I would reverse the violent career criminal sentence imposed on the defendant.
. 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009)…le felony that will support his sentence as a “violent career criminal” under section 775.084 of the Florida 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 qua…
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Emilio Diaz v. State, 837 So. 2d 436 (Fla. 3d DCA 2002)…Diaz assigns error in his sentence as a violent career criminal when his prior convictions were all for burglaries of unoccupied structures. We find the argument persuasive for the reasons stated in Chief Judge Schwartz’s dissent in Delsol v. State, 837 So. 2d 428, (2002), but we are bound by the results in that case and therefore affirm.1 Affirmed. . We trust that the Office of the Public Defender will need no encouragement to file a motion for rehearing en banc of this issue.…
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Cala v. State, 854 So. 2d 840 (Fla. 3d DCA 2003)…urglary of an unoccupied premises, may qualify as a predicate conviction under section 775.084. See, e.g., Woody v. State, 847 So. 2d 566 (Fla. 3d DCA 2003) (holding that “non-violent burglaries ... counted as qualifying offenses”); Delsol v. State, 837 So. 2d 428 (Fla. 3d DCA 2002) (holding that non-violent burglaries could be considered [*841] forcible felonies under section 775.084 as qualifying offenses); see also Spikes v. State, 851 So. 2d 252 (Fla. 3d DCA 2003) (confirming that conviction for burglary…
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
- Ex Parte: Ernest Amos, 93 Fla. 5 (Fla. 1927)
- Rodriguez v. State, 826 So. 2d 464 (Fla. 3d DCA 2002)
- Dax Anthony Rodriguez v. State, 773 So. 2d 1222 (Fla. 3d DCA 2000)