SIMON CRIBBS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Simon Cribbs appealed the denial of his motion challenging his violent career criminal (VCC) sentence enhancement for battery on a law enforcement officer (BOLEO). The court reversed and remanded for resentencing, holding that BOLEO is not a "forcible felony" qualifying for VCC enhancement because violence is not an essential element of the offense.
Battery on a law enforcement officer is not a forcible felony and does not qualify for VCC sentencing enhancement. For an offense not specifically enumerated in the forcible felony statute, the use or threat of physical violence must be an essential element of the offense to constitute a forcible felony, and BOLEO can be committed without such violence.
[1] Battery on a law enforcement officer is not a "forcible felony" for the purpose of violent career criminal sentencing enhancement.
[2] For an offense not specifically enumerated as a "forcible felony," the use or threat of physical violence must be an essential element of the offense to qualify.
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“For an offense not specifically enumerated in section 776.08, the Florida Supreme Court has held that the use or threat of physical violence must be an essential element of the offense if it is to be considered a "forcible felony."”
Establishes the legal standard for determining whether non-enumerated offenses qualify as forcible felonies
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Join FLexlaw to unlock all legal intelligenceCribbs was convicted of battery on a law enforcement officer and sentenced to fifteen years in prison with a ten-year mandatory minimum as a violent c…
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CANADY, Judge.
Simon Cribbs appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s denial of claim two without comment but reverse the denial of claim one and remand for resentencing.
Cribbs claimed that his sentence of fifteen years’ prison with a ten-year mandatory minimum as a violent career criminal (VCC) on his conviction for battery on a law enforcement officer (BO-LEO) is illegal because BOLEO is not a “forcible felony” that qualifies for VCC sentencing. See § 775.084(l)(d)(l)(a), Fla. Stat. (2001) (stating that a “forcible felony” is subject to VCC sentencing); § 776.08, Fla. Stat. (2001) (defining “forcible felony” and listing offenses which constitute forcible felonies); § 784.07(2), Fla. Stat. (2001) (defining the offense of battery on a law enforcement officer). The postconviction court erroneously denied the claim, finding that Cribbs’ offense qualified because there was evidence he used violence in its commission.
For an offense not specifically enumerated in section 776.08, the Florida Supreme Court has held that the use or threat of physical violence must be an essential element of the offense if it is to be considered a “forcible felony.” State v. Hearns, 961 So. 2d 211, 215 (Fla.2007) (citing Perkins v. State, 576 So. 2d 1310, 1313 (Fla.1991)). The supreme court has also decided that “BOLEO is not a forcible felony under section 776.08 and should not [be] counted as a qualifying offense for VCC sentence enhancement” because one may commit the offense without the use or threat of violence. Hearns, 961 So. 2d at 219. Consequently, we reverse the denial of Cribbs’ claim. Because BOLEO is a felony of the third degree pursuant to section 784.07, Florida Statutes (2001), and Cribbs’ fifteen-year sentence exceeds the statutory maximum for this offense, we remand for resentencing on count one without the VCC enhancement.
Affirmed in part, reversed in part, and remanded.
WHATLEY and LaROSE, JJ., Concur.
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Erwin P. Wilder v. State, 992 So. 2d 912 (Fla. 2d DCA 2008)…cible felony” that can be counted as a qualifying felony to enhance a defendant’s sentence as a VCC. Applying the rationale espoused in Hearns, this court has determined that a conviction for BOLEO is 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 ru…
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Cribbs v. State, 32 So. 3d 88 (Fla. 2d DCA 2009)…We affirm the dismissal of claim one but hold that Cribbs is entitled to relief on claim two. Claim one of Cribbs’ motion is identical to a claim raised in a prior rule 3.800(a) motion. He obtained relief on that claim pursuant to Cribbs v. State, 978 So. 2d 828 (Fla. 2d DCA 2008). The postconviction court correctly dismissed this portion of Cribbs’ motion as moot. In claim two, Cribbs challenges the VCC sentence imposed upon his conviction of resisting an officer with violence on the ground that he does…
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Crews v. State (Fla. 2d DCA 2018)
Authorities Cited
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)