Bynes v. State, 4D02-1119.

• Decision Date: 24 September 2003
• Docket Number: No. 4D02-1119.,4D02-1119.
• Parties: William BYNES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

854 So.2d 289

William BYNES, Appellant, v. STATE of Florida, Appellee.

No. 4D02-1119.

District Court of Appeal of Florida, Fourth District.

September 24, 2003.

Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

STONE, J.

We deny Bynes' motion for rehearing. However, we withdraw the opinion issued July 30, 2003, and substitute the following:

Bynes was sentenced as a violent career criminal to concurrent terms of forty years for the offenses of fleeing and eluding and aggravated assault on a law enforcement officer and to fifteen years for resisting arrest with violence and grand theft.

On appeal, he asserts that the violent career criminal statute is unconstitutional as applied because his prior felony convictions for burglary of an unoccupied conveyance were not violent crimes. We conclude that burglary of an unoccupied conveyance was included as a qualifying offense under the statute and that the effect is not unconstitutional. We, therefore, affirm Bynes' conviction and sentence as a violent career criminal.

Any defendant who has previously been convicted as an adult three or more times for a forcible felony as described in section 776.08¹ must be sentenced as a violent career criminal. § 775.084(1)(d), Fla. Stat. (2001). Under section 776.08, a "forcible felony" consists of:

treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

§ 776.08, Fla. Stat. (emphasis added) To the extent that the term "burglary," in the definition of "forcible felony" includes any burglary, even that of an unoccupied conveyance, Bynes argues that the violent career criminal statute is unconstitutionally over-inclusive.

We agree, however, with the Third District's interpretation of the forcible felony statute. In Rodriguez v. State, 826 So.2d 464, 465 (Fla. 3d DCA 2002), the Third District determined that the phrase, "involves the use or threat of physical force or violence against any individual" cannot rationally be read as a limitation on all of the crimes previously listed in the forcible felony statute. Id.; see also Delsol v. State, 837 So.2d 428, 429 (Fla. 3d DCA 2002).

We review the constitutionality issue in light of the rational basis standard. Shapiro v. State, 696 So.2d 1321, 1326-27 (Fla. 4th DCA 1997). The rational basis test requires the legislature to have a legitimate purpose for enacting the statute and to select means which have a reasonable and substantial relation to its purpose which are not unreasonable, arbitrary, or capricious. State v. Saiez, 489 So.2d 1125, 1128 (Fla.1986).

The legislative purpose of the violent career criminal statute is set out in section 775.0841:

The Legislature finds a substantial and disproportionate number of serious crimes are committed in Florida by a relatively small number of repeat and violent felony offenders, commonly known as career criminals.... The Legislature intends ... to incarcerate them for extended terms; and, in the case of violent career criminals, such extended terms must include substantial mandatory minimum terms of imprisonment.

The legislative intent expressed in section 775.0841 applies to all career criminals and violent career criminals. This includes, in order from least severely punished to most severely punished: habitual felony offenders (two prior felonies), habitual violent felony offenders (one prior enumerated felony), three-time violent felony offenders (two prior enumerated felonies), and violent career criminals (three prior enumerated felonies). See § 775.084(a)-(d), Fla. Stat. (2001); Fla. H.R. Comm. on Crime and Punishment, CS/HB 121, Final Analysis (June 22, 1999). Notably, the prison releasee reoffender statute, also in chapter 775, does not include simple burglary as a predicate offense, but does include "Armed burglary; [and] ... Burglary of a dwelling or burglary of any occupied structure." § 775.082(9)(a)1. p. and q., Fla. Stat. (2001) (emphasis added). Bynes could not have been sentenced as a prison releasee reoffender, a three-time violent felony offender or a habitual violent felony offender because those statutes do not list "burglary" as one of the qualifying offenses. See § 775.084(1)(b)1.m. and (c)1.m., Fla. Stat. (2001). Simple burglary is included only in the sentencing enhancement available for violent felons. Nevertheless, the inclusion is rationally related to the legislature's goal of punishing career felony offenders who have previously been convicted of three enumerated felonies at the time of sentencing. As such, these repeat offenders face a harsher punishment than the felony offenders who have not committed the requisite number of enumerated felonies.

To conclude that burglary cannot be a "violent" felony when the structure or conveyance being burglarized is unoccupied would substitute this court's opinion for the expression of the legislature...