WILLIAM W. GRAHAM, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The offense of battery on a law enforcement officer cannot be used as a qualifying offense for sentencing as a violent career criminal unless it involves the use or threat of physical force or violence or is enumerated as a forcible felony.
William W. Graham sought rehearing of a prior opinion. The court is reconsidering whether battery on a law enforcement officer qualifies as a forcible…
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ON MOTION FOR REHEARING GRANTED
PER CURIAM.
William W. Graham seeks rehearing of this court’s opinion issued on September 21, 2005. We grant rehearing, withdraw our previous opinion and substitute the following opinion in its place.
This court has previously held that the offense of battery on a law enforcement officer does not necessarily involve the use or threat of use of physical force or violence. That offense, without proof that it is one of the forcible felonies enumerated in section 776.08, Florida Statutes or that it was committed with physical force or violence, cannot be used as a qualifying offense for purposes of sentencing as a violent career criminal. § 775.084(1)(d)l.a and § 776.08, Fla. Stat. (2003); see Hearns v. State, 912 So. 2d 377 (Fla. 3d DCA 2005); Johnson v. State, 858 So. 2d 1071 (Fla. 3d DCA 2003); Hudson v. State, 800 So. 2d 627 (Fla. 3d DCA 2001). We explained in those cases that the problem with using the offense of battery on a LEO as a qualifying offense is that it might not be a forcible felony: battery can be accomplished by mere touching, without the use or threat of use of physical force or violence. See also Perkins v. State, 576 So. 2d 1310 (Fla.1991). As the “forcible felony” language used in the prison releas-ee reoffender statute is identical to that of the violent career criminal statute, see section 775.082(9)(a)l.o, Florida Statutes (2003), the same reasoning applies. We thus reverse and remand for resentencing in accordance with this opinion.
We also certify direct conflict with Jenkins v. State, 884 So. 2d 1014 (Fla. 1st DCA 2004), Brown v. State, 789 So. 2d 366 (Fla. 2d DCA 2001), Spann v. State, 772 So. 2d 38 (Fla. 4th DCA 2000).
Reversed and remanded; conflict certified.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- Hudson v. State, 800 So. 2d 627 (Fla. 3d DCA 2001)
- Cedrick E. Spann v. State, 772 So. 2d 38 (Fla. 4th DCA 2000)
- Carnival Corp. v. Velchez, 789 So. 2d 366 (Fla. 3d DCA 2001)
- Ulysses Drake, Jr. v. State, 772 So. 2d 38 (Fla. 2d DCA 2000)
- Hearns v. State, 912 So. 2d 377 (Fla. 3d DCA 2005)
- Johnson v. State, 858 So. 2d 1071 (Fla. 3d DCA 2003)
- Templeman v. State, 884 So. 2d 1014 (Fla. 1st DCA 2004)