GABRIEL KIRKLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Gabriel Kirkland appeals the denial of his motion to correct an illegal sentence, challenging the trial court's imposition of a prison releasee reoffender (PRR) sentencing enhancement for battery on a law enforcement officer (BOLEO). The court reverses and remands, holding that BOLEO does not qualify for PRR enhancement because it is neither enumerated in the PRR statute nor falls within the 'catchall' provision requiring use or threat of physical force.
The court holds that BOLEO does not qualify for PRR sentencing enhancement because the crime is neither enumerated under section 775.082(9)(a)(l) nor does it necessarily involve the use or threat of physical force against an individual required by the 'catchall' provision. Therefore, the PRR designation on counts three through six is an illegal sentence.
[1] A prison releasee reoffender (PRR) designation is illegal when applied to the offense of battery on a law enforcement officer, as it is not an enumerated offense under th…
[2] The determination of whether an offense qualifies for prison releasee reoffender sentencing must be consistent under both the violent career criminal statute and the pris…
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“whether BOLEO is a qualifying offense must be answered consistently under both the VCC [violent career criminal] statute and the PRR statute”
Establishes the consistent application principle for determining whether BOLEO qualifies under sentencing enhancement statutes
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKirkland pleaded guilty on April 13, 2009, to driving with a suspended license, fleeing or attempting to elude, four counts of battery on a law enforc…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Forcible Felony cases and more on FLexlaw
Gabriel Kirkland appeals the postconviction court’s order denying his timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the postconviction court to strike the prison releasee reoffender designation from his sentences for battery on a law enforcement officer.
On April 13, 2009, Kirkland pleaded guilty to driving with a suspended license (count one), fleeing or attempting to elude (count two), four counts of battery on a law enforcement officer (BOLEO) (counts three through six), and resisting arrest with violence (count seven). Kirkland was sentenced to concurrent terms of five years’ imprisonment on counts one, two, and seven and as a prison releasee reoffen-der (PRR) to concurrent terms of five years’ imprisonment on counts three through six. However, the sentences on counts three through six were consecutive to those on counts one, two, and seven.
In his motion, Kirkland alleged that his sentences in counts three through six are illegal because he should not be subjected to PRR sentencing. In support of this allegation, Kirkland claimed that a court cannot impose a PRR sentencing enhancement for offenses not listed in section 775.082(9)(a)(l), Florida Statutes (2008). Kirkland further alleged that BOLEO is not enumerated in the PRR statute and does not constitute a forcible felony. See State v. Hearns, 961 So.2d 211, 219 (Fla. 2007); Allen v. State, 984 So.2d 656, 657 *255(Fla. 1st DCA 2008). As such, Kirkland claimed that his PRR treatment in counts three through six amounted to an illegal sentence and that a defendant cannot assent to an illegal sentence. See Gregory v. State, 997 So.2d 1287, 1288 (Fla. 3d DCA 2009). Accordingly, Kirkland requested that the court issue an order striking the PRR enhancements from counts three through six.
The postconviction court treated Kirkland’s motion as a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 8.800(a). The court recognized that BOLEO is not an enumerated offense under section 775.082(9)(a)(l) but found that Kirkland could still qualify as a PRR under the “catchall” provision if the qualifying offense(s) involved the use or threat of physical force or violence against an individual. See § 775.082(9)(a)(l)(o). The court attached the probable cause affidavit from Kirkland’s arrest, which indicates that Kirkland ran his vehicle into two police cars carrying four different officers. Based on this information, the court found that the evidence of the use or threat of physical force or violence against the officers was sufficient to qualify Kirkland as a PRR under section 775.082(9)(a)(l)(o) and denied Kirkland’s motion.
In response to an order from this court, the State conceded that the PRR enhancement was illegal and conceded that reversal and remand with directions to strike the PRR designation are required. Specifically, the State agreed with Kirkland’s argument based on Hearns, in which the Florida Supreme Court held that BOLEO is not a “forcible felony” for the purposes of violent career criminal sentencing because “ ‘the use or threat of physical force or violence against any individual’ is not a necessary element of the crime.” 961 So.2d at 216 (quoting Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991)). The supreme court further held that “whether BOLEO is a qualifying offense must be answered consistently under both the VCC [violent career criminal] statute and the PRR statute.” Id. at 217. In Walker v. State, 965 So.2d 1281, 1283-84 (Fla. 2d DCA 2007), this court applied the reasoning set forth in Hearns and held that PRR sentencing is inapplicable to the crime of BOLEO. As BOLEO is not enumerated under section 775.082(9)(a)(l) and, pursuant to Hearns and Walker, does not fall within the “catchall” provision of section 775.082(9)(a)(l)(o), Kirkland’s classification as a PRR on counts three through six amounts to an illegal sentence.
Therefore, we reverse the postconviction court’s denial of Kirkland’s motion and remand for the court to strike the PRR designation from Kirkland’s sentences in counts three through six.
Reversed and remanded.
CASANUEVA and MORRIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Elmore v. State, 172 So. 3d 465 (Fla. 1st DCA 2015)…an enumerated offense under the PRR statute. State v. Hearns, 961 So. 2d 211, 212 (Fla.2007); Walker v. State, 965 So. 2d 1281, 1283 (Fla. 2d DCA 2007). Moreover, the erroneous imposition of PRR status renders a sentence illegal. Kirkland v. State, 71 So. 3d 254, 255 (Fla. 2d DCA 2011). In order to raise a claim of sentencing error on direct appeal, a defendant must either contemporaneously object to the sentencing error or file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Jackson v…
-
McAlkich v. State, 270 So. 3d 507 (Fla. 2d DCA 2019)…is neither a qualifying nor an enumerated offense under the PRR statute. Moreover, the erroneous imposition of PRR status renders a sentence illegal." (first citing State v. Hearns, 961 So. 2d 211, 212 (Fla. 2007), then citing Kirkland v. State, 71 So. 3d 254, 255 (Fla. 2d DCA 2011))). Accordingly, we affirm McAlkich's convictions and sentences on counts one and three without further comment, but we reverse McAlkich's sentence on count two and remand for the trial court to strike the PRR designation.…
Authorities Cited
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- Walker v. State, 965 So. 2d 1281 (Fla. 2d DCA 2007)
- Gregory v. State, 997 So. 2d 1287 (Fla. 3d DCA 2009)
- Allen v. State, 984 So. 2d 656 (Fla. 1st DCA 2008)