EARL BUTLER, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Earl Butler petitioned for relief alleging ineffective assistance of appellate counsel. The appellate court found merit in one ground: counsel's failure to challenge battery convictions enhanced under the prison releasee reoffender (PRR) statute, which does not qualify battery offenses for enhancement.
Battery on a law enforcement officer does not qualify for PRR sentencing enhancement. Appellate counsel was ineffective for failing to file the Rule 3.800(b)(2) motion, and Butler's battery sentences must be reversed and remanded for resentencing without the illegal PRR enhancements.
[1] A claim that appellate counsel was ineffective for failing to file a motion to correct a sentencing error is cognizable in a petition alleging ineffective assistance of c…
[2] Battery on a law enforcement officer is not an offense that qualifies a person for an enhanced prison releasee reoffender (PRR) 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“battery on a law enforcement officer is not an offense that qualifies a person for an enhanced PRR sentence”
Establishes the core legal principle that battery convictions cannot be enhanced under the PRR statute, making the sentencing error in Butler's case illegal.
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Join FLexlaw to unlock all legal intelligenceButler was convicted by jury of two counts of battery on a law enforcement officer, resisting officers with violence, and two drug possession offenses…
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Earl Butler has filed a timely petition under Florida Rule of Appellate Procedure 9.141(d) alleging that appellate counsel was ineffective. We find merit only in ground five of Butler’s petition; we deny the remaining grounds of his petition.
A jury found Butler guilty of two' counts of battery' on a law enforcement officer, resisting officers with violence, possession of cocaine with intent to sell or deliver within 1000 feet of a church, possession of cannabis with , intent to sell or deliver within 1000 feet of a church, and possession- of drug paraphernalia. The trial court sen-teheed Butler as a habitual felony offender to concurrent terms of ten years’ imprisonment for the battery and resisting- counts (each with a five-year mandatory minimum as a prison releasee reoffender (PRR)), thirty years’ imprisonment for the possession of cocaine count, fifteen years’ imprisonment- for the possession of cannabis count, and time served on the drug paraphernalia count.
In ground five of his petition, Butler correctly argues that his appellate counsel was ineffective for failing to file a motion under Florida Rule of Criminal Procedure 3.800(b)(2) alleging that his battery convictions did not qualify for enhancement under the PRR statute.1 See Walker v. State, 965 So.2d 1281, 1283 (Fla. 2d DCA 2007) (holding that battery on a law enforcement officer is not an offense that qualifies a person for an enhanced PRR sentence). Thus, if appellate counsel had given the trial court the opportunity to correct the sentencing error by filing a rule 3.800(b)(2) motion and the court failed to do so, the issue would have been preserved for review. This court would have then been compelled to reverse Butler’s battery sentences and remand for the court to resentence Butler without the illegal PRR enhancements. Accordingly, because a new appeal would be redundant, we reverse Butler’s.sentences for. the two counts of battery on a law enforcement officer and remand for resentencing without the PRR enhancements. See Rivers v. State, 17 So.3d 347, 347 (Fla. 2d DCA 2009).
Petition denied in part and granted in part.
LaROSE and SALARIO, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Walker v. State, 965 So. 2d 1281 (Fla. 2d DCA 2007)
- Agosto-Molina v. State, 933 So. 2d 26 (Fla. 2d DCA 2006)
- Fortner v. State, 23 So. 3d 1275 (Fla. 2d DCA 2010)
- Rivers v. State, 17 So. 3d 347 (Fla. 2d DCA 2009)