TRAVIS BALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2017-01-13
No. Case No. 5D16-625
BERGER and EDWARDS, JJ., concur.
208 So. 3d 327 Florida District Court of Appeal, Fifth District (2017)

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Holding

The court held that vehicular homicide qualifies as a felony involving the use or threat of physical force or violence, thus fitting the catchall provision of the Prison Releasee Reoffender statute.


Headnotes

[1] A felony qualifies under the catchall provision of the Prison Releasee Reoffender (PRR) statute if its statutory elements involve the use or threat of physical force or v…

[2] To determine if an unenumerated offense falls within the PRR statute's catchall provision, courts examine only the statutory elements of the offense, not the specific fac…

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Facts & Procedural History

Travis Ball pleaded guilty to vehicular homicide and was sentenced as a habitual felony offender and a prison releasee reoffender (PRR). Ball argued t…

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Opinion of the Court
ORFINGER, J.

ORFINGER, J.

After pleading guilty to one count of vehicular homicide, Travis Ball appeals his sentence. Ball argues that the trial court erred in sentencing him as a prison releas-ee reoffender (PRR). We affirm.

At sentencing, Ball conceded that he qualified as a habitual felony offender (HFO), but objected to the PRR classification. The trial court sentenced Ball to twenty-two years in the Department of Corrections as an HFO and PRR, the first fifteen of which is the mandatory sentence resulting from being classified as a PRR pursuant to the catchall provision found in section 775.082(9)(a)l.o., Florida Statutes (2013).1 The PRR statute in effect at the *329time of the offense defined a PRR as a defendant who committed, or attempted to commit, one of several enumerated offenses within three years of being released from a state correctional facility. § 775.082(9)(a)l, Fla. Stat. (2013). Of relevance to this case, the definition also included a defendant who had committed or attempted to commit “[a]ny felony that involves the use or threat of physical force or violence against an individual” within the requisite time period. Id. § 775.082(9)(a)l.o.

Because vehicular homicide is not a specifically enumerated offense under the PRR statute, the trial court could not classify Ball as a PRR unless that offense fell under the catchall provision, section 775.082(9)(a)l.o. — “[a]ny felony that involves the use or threat of physical force or violence against an individual.” Whether it does is a pure question of law that we review de novo. Sutton v. State, 975 So,2d 1073, 1076 (Fla. 2008), Ball argues physical force or violence is not a necessary element of vehicular homicide. We disagree.

“If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony.” State v. Hearns, 961 So.2d 211, 215 (Fla. 2007). A crime “involves the use or threat of physical force or violence against any individual” if that use or threat is a “necessary element of the crime.” Perkins v. State, 576 So.2d 1310, 1313 (Fla. 1991) (emphasis omitted). The U.S. Supreme Court has defined “physical force” to mean “force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Black’s Law Dictionary similarly defines “actual force” and “physical force” as “[floree consisting in a physical act.” Force, Black’s Law Dictionary (10th ed. 2014).

To determine whether an unenu-merated offense falls within the catchall provision, courts consider only the statutory elements of the offense, “not whether in the particular case the evidence showed that force or violence had been used.”2 Ellis v. State, 135 So.3d 478, 480 (Fla. 2d DCA 2014). Vehicular homicide is “the killing of a human being ... caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2013). The elements are: (1) the death of the victim, (2) the death was caused by the operation of a motor vehicle by the defendant, and (3) the defendant operated the motor vehicle in a reckless manner likely to cause the death of or great bodily harm to another person. In re Standard Jury Instructions in Criminal Cases-No. 2006-1, 946 So.2d 1061, 1067 (Fla. 2006).

“Vehicular homicide cannot be proven without also proving the elements of reckless driving,” Berube v. State, 6 So.3d 624, 625 (Fla. 5th DCA 2008), which involves driving with a “willful or wanton disregard for the safety of persons or property.” § 316.192(l)(a), Fla. Stat. (2013). “Wanton” means “with a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.” Fla. Std. Jury Instr. (Crim.) 28.5; D.E. v. State, 904 So.2d 558, 561 (Fla. 5th DCA 2005); W.E.B. v. State, 553 So.2d 323, 326 (Fla. 1st DCA 1989). A person convicted of vehicular homicide need not *330have foreseen the specific consequences of his or her actions, but must have “reasonably foreseen that the same general type of harm might occur if he or she knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm to another.” D.E., 904 So.2d at 562.

Applying this analysis, we conclude vehicular homicide is a qualifying PRR offense because it requires the death of an individual without any nonforce alternatives.3 Physical force or violence is “necessary as a condition or result” of vehicular homicide, see Perkins, 576 So.2d at 1313, because it requires the death of a person caused by a defendant who “knowingly drove a vehicle under circumstances that would likely cause death or great bodily harm to another.” State v. Lebron, 954 So.2d 52, 55 (Fla. 5th DCA 2007) (quoting D.E., 904 So.2d at 562).

AFFIRMED.

BERGER and EDWARDS, JJ., concur.


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