CARLOS ACOSTA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Carlos Acosta appeals his enhanced sentence imposed under the Prison Releasee Re-offender (PRR) and Violent Career Criminal (VCC) statutes for battery of a law enforcement officer (BOLEO). The court reverses, holding that BOLEO convictions cannot serve as the basis for sentence enhancement under these statutes because BOLEO does not involve the requisite use or threat of physical force or violence.
A BOLEO conviction cannot serve to enhance a sentence under the PRR or VCC statutes because BOLEO does not fall within the enumerated felonies or the forcible felony catchall of either statute. Under Perkins v. State (1991), the statutory elements of a felony must involve use or threat of physical force or violence to qualify for enhancement, and BOLEO's elements do not necessarily require such force or violence.
[1] A conviction for battery of a law enforcement officer cannot serve to enhance a sentence under the Prison Releasee Re-offender or Violent Career Criminal statutes.
[2] For a felony to fall within the forcible felony catchall of the Prison Releasee Re-offender or Violent Career Criminal statutes, its statutory elements must involve the u…
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Join FLexlaw to unlock all legal intelligence“a BOLEO conviction cannot serve to enhance a sentence under the PRR or VCC statutes”
Establishes the core holding that BOLEO is not a qualifying felony for sentence enhancement.
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Join FLexlaw to unlock all legal intelligenceCarlos Acosta was convicted of battery of a law enforcement officer (BOLEO) and received an enhanced sentence as a Prison Releasee Re-offender and Vio…
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DAMOORGIAN, Associate Judge.
Carlos Acosta appeals his enhanced sentence as a Prison Releasee Re-offender (PRR) and a Violent Career Criminal (VCC) for battery of a law enforcement officer (BOLEO). We reverse because a BOLEO conviction cannot serve to enhance a sentence under the PRR or VCC statutes.
The VCC and PRR statutes call for an enhanced sentence when the felony committed is one of the enumerated felonies or if the felony falls within the forcible felony catchall. See Fla. Stat. §§ 775.082 and 775.084 (2002).
BOLEO is not one of the enumerated felonies in either the VCC or PRR statutes. Id. In Perkins v. State, 576 So. 2d 1310, 1313 (Fla.1991), the supreme court held that the statutory elements of the felony must involve “use or threat of physical force or violence against any individual” for it to fall within the forcible felony catchall. In State v. Hearns, 961 So. 2d 211, 220 (Fla.2007), a case decided after Acosta’s sentence was imposed, the supreme court found that BOLEO does not fall under the forcible felony catchall for either statute because its elements do not necessarily involve “use or threat of physical force or violence.” 1 Consequently, a BOLEO conviction may not serve to enhance a sentence under the VCC or PRR statutes.
Thus, the issue becomes whether Hearns should be applied retroactively.
In order to determine whether Hearns controls, we must first determine what the law was at the time Acosta was convicted. See State v. Barnum, 921 So. 2d 513, 521 (Fla.2005) (in determining whether a judicial interpretation of a criminal statute applies retroactively, the proper question is not whether the law has changed, but rather what the state of the law was at the time of the defendant’s conviction).
If a decision of a court has changed the state of the law, then it can only be applied retroactively if it meets the three-prong Witt test. Witt v. State, 387 So. 2d 922, 931 (Fla.1980) (decision that changes the law will only be considered if it (1) emanates from the Florida or U.S. supreme courts; (2) the decision must be constitutional in nature; and (3) it must constitute a development of fundamental significance). However, the supreme court in Hearns did not change the law; instead, the court held that the trial court’s finding that BOLEO could fall within the forcible felony catchall “conflict[ed] with [its] decision in Perkins.” 961 So. 2d at 212.
The district courts’ decisions were in conflict with Perkins because they applied a factual analysis in order to determine whether the offense charged involved the “use or threat of physical force or violence against any individual” as opposed to looking only at the elements of the offense.
Thus, the Hearns court did not change the law. Since Perkins was decided in 1991, under the law at the time of Acosta’s conviction, BOLEO did not fall within the forcible felony catchall.
Consequently, the three-prong Witt test is not applicable.
Therefore, the trial court imposed an illegal sentence because, at the time of Acosta’s conviction, a conviction for BO-LEO could not result in an enhanced sentence under the VCC or PRR statutes.
Reversed and remanded for further proceedings consistent with this opinion.
. In Johnson v. State, 858 So. 2d 1071, 1072 (Fla. 3d DCA 2003) (on rehearing), this Court found that spitting on a law enforcement officer does not amount to "the use or threat of use of physical force or violence”.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kalogeras v. State, 58 So. 3d 889 (Fla. 5th DCA 2011)…addressing the VCC statute, Hearns has been applied to the PRR statute because the language in the catchall provision is identical. See Walker v. State, 965 So. 2d 1281 (Fla. 2d DCA 2007). It has also been applied retroactively. See Acosta v. State, 982 So. 2d 87 (Fla. 3d DCA 2008). The Second, Third and Fourth Districts, applying Hearns, have concluded that false imprisonment is not subject to PRR sentencing. See Lamb v. State, 32 So. 3d 117 (Fla. 2d DCA 2009); Davis v. State, 20 So. 3d 1024 (Fla. 4th DCA 2…
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Santiago v. State, 76 So. 3d 1027 (Fla. 3d DCA 2011)…orce or violence, and concluded that, because BOLEO may be established in this way, the offense of BOLEO does not necessarily involve the use or threat of physical force or violence, and is therefore not a forcible felony. See also, Acosta v. State, 982 So. 2d 87 (Fla. 3d DCA 2008). Applying the statutory elements test of Perkins and Hearns to the offense in this case leads to the same conclusion. Because the statutory elements of burglary with an assault or battery require the State to prove either an assa…
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Brinson v. State, 995 So. 2d 1047 (Fla. 2d DCA 2008)…physical force or violence against any individual. Because Perkins was actually the controlling authority when Brinson was sentenced, his prior conviction for BOLEO should not have been used to qualify him for PRR sentencing. See Acosta v. State, 982 So. 2d 87 (Fla. 3d DCA 2008) (holding that the court need not determine whether Hearns should apply retroactively because Perkins was always the controlling authority). Nonetheless, the State urges us to affirm the postconviction court’s ruling because this c…
Authorities Cited
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- Perkins v. State, 576 So. 2d 1310 (Fla. 1991)
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- State v. Barnum, 921 So. 2d 513 (Fla. 2005)
- Johnson v. State, 858 So. 2d 1071 (Fla. 3d DCA 2003)