DWAYNE JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dwayne Johnson appeals the denial of his post-conviction motion challenging his violent career criminal (VCC) sentencing. The court reversed the denial of one claim, holding that battery on a law enforcement officer (BOLEO) does not qualify as a 'forcible felony' required for VCC sentencing, while affirming the denial of another claim.
Battery on a law enforcement officer does not constitute a 'forcible felony' for VCC sentencing purposes because the use or threat of physical force or violence is not a necessary element of the crime. Accordingly, Johnson's VCC sentence on the BOLEO conviction must be vacated, though his VCC sentence on the escape conviction remains valid.
[1] Battery on a law enforcement officer is not a "forcible felony" for the purpose of violent career criminal sentencing.
[2] A conviction for battery on a law enforcement officer cannot serve as the basis for a violent career criminal sentence.
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 use or threat of physical force or violence against any individual' is not a necessary element of the crime”
Establishes the legal standard for why BOLEO does not qualify as a forcible felony for VCC sentencing
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted by jury of escape and battery on a law enforcement officer (BOLEO). The State sought VCC sentencing under Florida law, and the t…
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VILLANTI, Judge.
Dwayne L. Johnson appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of Johnson’s first claim without comment. We reverse the denial of claim two and remand with instructions.
Johnson was convicted by a jury of one count of escape and one count of battery on a law enforcement officer (BOLEO). The State served a notice of its intent to seek to have Johnson sentenced as a violent career criminal (VCC) pursuant to section 775.084(l)(d), Florida Statutes (2000). After a hearing, the trial court found that Johnson qualified as a VCC. Johnson’s BOLEO conviction was a third-degree felony. See § 784.07(2)(b), Fla. Stat. (2000). Thus, the trial court sentenced Johnson on his BOLEO conviction to fifteen years in prison with a ten-year minimum mandatory pursuant to section 775.084(4)(d)(3).
In claim two of his motion, Johnson alleged that his BOLEO conviction is not subject to VCC sentencing because BO-LEO is not a “forcible felony.” See § 775.084(l)(d)(l)(a), Fla. Stat. (2000) (providing that a “forcible felony” is a qualifying offense); § 776.08, Fla. Stat. (2000) (defining “forcible felony”). Johnson is correct. The Florida Supreme Court has held that BOLEO is not a “forcible felony” for purposes of VCC sentencing because “ ‘the use or threat of physical force or violence against any individual’ is not a necessary element of the crime.” State v. Hearns, 961 So. 2d 211, 216 (Fla.2007) (quoting Perkins v. State, 576 So. 2d 1310, 1313 (Fla.1991)). Johnson’s VCC sentence on his escape conviction is unaffected by Hearns. See § 775.084(l)(d)(f) (listing escape as a qualifying felony for VCC sentencing).
Accordingly, we reverse the postconviction court’s denial of Johnson’s rule 3.800(a) motion, and we direct the trial court to vacate the VCC sentence on his BOLEO conviction and resentence Johnson to any sentence that the trial court could have legally imposed for this conviction at the original sentencing hearing. In all other respects, we affirm.
Affirmed in part, reversed in part, and remanded for resentencing.
WHATLEY and LaROSE, JJ„ Concur.
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Citator
Cited By
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Erwin P. Wilder v. State, 992 So. 2d 912 (Fla. 2d DCA 2008)…s not subject to VCC enhancement. Cribbs v. State, 978 So. 2d 828 (Fla. 2d DCA 2008) (reversing, in part, summary denial of Florida Rule of Criminal Procedure 3.800(a) motion and remanding for resentencing on conviction for BOLEO); Johnson v. State, 977 So. 2d 661 (Fla. 2d DCA 2008) (reversing summary denial of rule 3.800(a) motion and directing court to vacate the VCC sentence and resentence on conviction for BOLEO). The pertinent provisions of the 2004 statutes, which are applicable in the present case, ar…
Authorities Cited
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)