Acevedo v. State
Decision Date | 18 May 2017 |
Docket Number | No. SC15–1873,SC15–1873 |
Parties | Carlos J. ACEVEDO, Petitioner, v. STATE of Florida, Respondent. |
Court | Florida Supreme Court |
Peter D. Webster, Christine Davis Graves, and James Parker–Flynn of Carlton Fields, Tallahassee, Florida, for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia Terenzio, Bureau Chief, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, Florida, for Respondent
This case is before the Court for review of the decision of the Fourth District Court of Appeal in Acevedo v. State , 174 So.3d 437 (Fla. 4th DCA 2015). The district court certified that its decision is in direct conflict with the decision of the Fifth District Court of Appeal in Durant v. State , 94 So.3d 669 (Fla. 5th DCA 2012). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we approve the decision of the Fourth District Court of Appeal and disapprove of the decision of the Fifth District Court of Appeal to the extent that it is inconsistent with this opinion.
Carlos Acevedo was convicted of lewd and lascivious battery, three counts of lewd and lascivious molestation, and lewd and lascivious conduct. The trial court found him to be a sexual predator and sentenced him to life in prison on each count, to run concurrently. The trial court declared him to be a dangerous sexual felony offender (DSFO), pursuant to section 794.0115(2), Florida Statutes, and imposed a mandatory minimum twenty-five-year sentence. Acevedo , 174 So.3d at 437. Acevedo's sentence was affirmed on direct appeal and, after the denial of his 3.850 motion, Acevedo filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that the predicate conviction used was insufficient to qualify him as a DSFO. Id. Specifically, Acevedo argued that the prior conviction under section 800.04, Florida Statutes (1981), did not contain elements similar to section 800.04(4), Florida Statutes (2005), or section 800.04(5), Florida Statutes. The Fourth District Court of Appeal disagreed and certified conflict with the Fifth District's decision in Durant . Id. at 439. This review follows.
The issue before this Court is whether, under the Dangerous Sexual Felony Offender Act, section 794.0115(2)(e), Florida Statutes (2005), a conviction for an offense under section 800.04, Florida Statutes (1981), constitutes a "similar offense under a former designation" to those offenses enumerated in the Act. Because we find that a "similar offense" for the purposes of the Act need not be an identical offense, we approve the Fourth District's decision below.
Because this is an issue of statutory interpretation, this Court's review is de novo. Plott v. State , 148 So.3d 90, 93 (Fla. 2014).
The DSFO Act provides:
§ 794.0115(2)(e), Fla. Stat. (2005). In short, the DSFO Act states that anyone previously convicted of one of the enumerated felonies or "of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph" is a dangerous sexual felony offender. In 2005, those enumerated felonies were:
In 1982, Acevedo was convicted of violating section 800.04, Florida Statutes (1981). In 1981, section 800.04, Florida Statutes, provided:
Any person who shall handle, fondle, or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree ....
§ 800.04, Fla. Stat. (1981). The 1981 statute therefore prohibited molestation of, assault of, or lewd or lascivious conduct in the presence of a minor.
In 2005, section 800.04, Florida Statutes, provided the following:
§ 800.04(4) –(6), Fla. Stat. (2005). The provisions of the 2005 version of the statute that are enumerated in the DSFO Act therefore prohibited both lewd and lascivious battery and lewd or lascivious molestation of a minor.
Acevedo argues that because the 1981 statute includes "without the intent to commit sexual battery" it cannot be found similar to the offenses defined in section 800.04, subsections (4) or (5), Florida Statutes (2005). We, like the Fourth District, are not persuaded by this argument.
Determining whether Acevedo met the requirements under the Act, the Fourth District Court of Appeal opined that the Act "requires similar elements, not identical elements." Acevedo , 174 So.3d at 438. We agree. As the Fourth District noted,1 "[b]oth statutes proscribe the lewd and lascivious touching of a child[,] ... require the victim to be under a certain similar age [and] are second degree felonies." Id.
In Durant , the Fifth District determined that section 800.04(1), Florida Statutes (1995)2 was not similar to section 800.04(4) –(5), Florida Statutes, for the purposes of DSFO designation pursuant to section 794.0115(2)(e), Florida Statutes. Durant , 94 So.3d at 671. Specifically, the Fifth District stated:
[W]e do not believe that the 1995 version of section 800.04(1) is similar in elements to sections 800.04(4) and (5). In particular, section 800.04(4) requires evidence of sexual activity, whereas there is no sexual activity requirement contained in section 800.04(1), Florida Statutes (1995). Likewise, section 800.04(5) requires evidence that the perpetrator intentionally touched "the breasts, genitals, genital area, or buttocks, or the clothing covering them" of the minor. Section 800.04(1), Florida Statutes (1995), contains no such requirement. Although section 800.04(5) and the 1995 version of section 800.04(1) contain other elements that are the same, we conclude they do not have similar elements for purposes of section 794.0115(2)(e).
Id. (footnote omitted). The district court continued, "Further, section 800.04(1), Florida Statutes (1995), shares similar elements with section 800.04(6), Florida Statutes [ (2012] ),3 which is not a qualifying felony in the DSFO statute....
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