Clark v. State, 1D01-1440.

Citation823 So.2d 809
Decision Date01 July 2002
Docket NumberNo. 1D01-1440.,1D01-1440.
PartiesOctavious Monshovia CLARK, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Nancy A. Daniels, Public Defender; Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Robert A. Butterworth, Attorney General; James W. Rogers, Bureau Chief Criminal Appeals, Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

Convicted of burglary of a dwelling with assault or battery, Octavious Monshovia Clark contends that he was unlawfully sentenced as a habitual violent felony offender because the predicate offense the trial court relied on was a North Carolina conviction for armed robbery. He argues that out-of-state convictions cannot be used as predicate felonies justifying habitual violent felony offender sentencing for subsequent offenses in Florida. He also argues that the state failed to prove that the North Carolina offense was an equivalent of the Florida offense of robbery. We reject both arguments and affirm.

I.

Section 775.084(1), Florida Statutes (2000), separately defines violent career criminals, habitual felony offenders, habitual violent felony offenders, and three-time violent felony offenders. A habitual felony offender is defined as an offender who, inter alia, "has previously been convicted... of two or more felonies in this state or other qualified offenses." § 775.084(1)(a)1., Fla. Stat. (2000). A violent career criminal is defined as an offender who, inter alia, "has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that ...." § 775.084(1)(d)1., Fla. Stat. (2000). A qualified offense is defined for purposes of these provisions as

any offense, substantially similar in elements and penalties to an offense in this state, which is in violation of a law of any other jurisdiction, whether that of another state, the District of Columbia, the United States or any possession or territory thereof, or any foreign jurisdiction, that was punishable under the law of such jurisdiction at the time of its commission by the defendant by death or imprisonment exceeding 1 year.

§ 775.084(1)(e), Fla. Stat. (2000). On the other hand, a habitual violent felony offender is defined as an offender who, inter alia, "has previously been convicted of a felony ... and one or more of such convictions was for ... [r]obbery." § 775.084(1)(b)1.c., Fla. Stat. (2000). The definition of a habitual violent felony offender does not include the phrase "or other qualified offenses." On the strength of this omission, the appellant asserts that the Legislature did not intend that out-of-state convictions serve as predicates for sentencing habitual violent felony offenders.

But this argument ignores both contrary precedent and legislative history, which accounts fully for the wording of the various provisions of section 775.084(1), without offering any support for appellant's construction of the statute. In 1988, the Legislature amended section 775.084 to require, as a predicate for habitual felony offender sentencing, proof that two prior felonies had been committed in Florida. See Ch. 88-131, § 6, at 706, Laws of Fla. (requiring that a defendant have "previously been convicted of two of more felonies in this state"). See Parrish v. State, 571 So.2d 97, 98 (Fla. 1st DCA 1990)

("To be deemed a habitual felony offender, the 1988 habitual offender statute necessitates an initial finding that the defendant has `previously been convicted of two or more felonies in this state.' § 775.084(1)(a)1, Fla. Stat. (Supp.1988). Although the statute contains additional requirements which permit the use of out-of-state convictions, the state's failure to establish the first requirement forecloses the possibility of habitual offender classification.").

The 1988 enactment also created the category of habitual violent felony offender sentencing, at issue here. See Ch. 88-131, § 6, at 707, Laws of Fla. Unlike the habitual felony offender provision, the habitual violent felony offender provision contained no language limiting predicate felonies to felonies committed within Florida. Relying on this distinction, the Fifth District ruled that section 775.084(1)(b), Florida Statutes (Supp.1988), authorized using an out-of-state conviction as a predicate qualifying a defendant as a habitual violent felony offender. See Canales v. State, 571 So.2d 87, 88-89 (Fla. 5th DCA 1990)

. The court reasoned:

Section 775.084(1)(a) defines an habitual felony offender as a defendant who has previously been convicted of two or more felonies in this state. Since this is appellant's first offense in Florida, he clearly does not fall within the definition; however, section 775.084(1)(b) defines an habitual violent felony offender as a defendant who has been convicted of one or more of the following offenses: arson, sexual battery, robbery, kidnapping, aggravated child abuse, aggravated assault, murder, manslaughter, unlawful throwing, placing, or discharging a destructive device or bomb, or armed burglary. Under the habitual violent felony provision there is no requirement that the prior violent felony be committed in Florida.
Canales urges that since the habitual violent felony offender provision does not specifically permit the enumerated offenses to have been committed outside Florida, we should apply the rule of lenity set out in section 775.021, Florida Statutes (1988) and construe the provision in his favor. We find that a careful reading of the entire statute shows that the legislature intended to treat habitual felons and habitual violent felons differently....

Id. at 88. See Kirby v. State, 625 So.2d 51, 56 (Fla. 3d DCA 1993)

("Under the habitual violent provision, there is no requirement that the felony has been committed in Florida."). See also Massey v. State, 651 So.2d 833, 834 (Fla. 5th DCA 1995); Richardson v. State, 622 So.2d 1061, 1062 (Fla. 5th DCA 1993); Bunch v. State, 622 So.2d 525, 526 (Fla. 5th DCA 1993); Dotson v. State, 585 So.2d 390, 390 (Fla. 1st DCA 1991). The decision in Canales antedates enactment of the violent career criminal and the three-time violent felony offender provisions.

When a court has interpreted a statute, particularly one amended as frequently as this one, and the Legislature does nothing to suggest that the interpretation does not effectuate legislative intent, there is ordinarily no good reason to alter the interpretation. See State v. Hall, 641 So.2d 403, 405 (Fla.1994)

("Because the legislature has failed to make any substantive changes to the pertinent statutory language, we must assume that it has no quarrel with these [prior] holdings. See White v. Johnson, 59 So.2d 532, 533 (Fla. 1952) (legislative inaction can be taken as an indication of legislature's acceptance of prior construction of statute)."); B & L Servs. v. Coach USA, 791 So.2d 1138, 1142 (Fla. 1st DCA 2001) ("Where the legislature fails to make substantive changes to the pertinent statutory language, it is assumed that the legislature accepted the prior judicial construction of the statute."). In 1989, moreover, the Legislature amended section 775.084(1)(a), the habitual felony offender provision, to allow the use of out-of-state convictions. See generally Ch. 89-280, § 1, at 1632-33, Laws of Fla. The Legislature had no need to amend section 775.084(1)(b), pertaining to habitual violent felony offenders, at the same time because language limiting the use of out-of-state convictions never appeared in section 775.084(1)(b).

II.

In order for an out-of-state conviction to qualify as a predicate offense under section 775.084(1)(b)1., Florida Statutes (2000), the elements of the out-of-state offense must be identical or functionally equivalent to the elements of an enumerated Florida offense. See Abner v. State, 566 So.2d 594, 595 (Fla. 1st DCA 1990)

. See also Robinson v. State, 692 So.2d 883, 886-87 (Fla.1997); Dautel v. State, 658 So.2d 88, 90-91 (Fla.1995). Here, both offenses contain elements requiring proof of (1) the unlawful taking of property (2) from or in the presence of another (3) against that person's will (4) by the use of force or putting in fear. Compare Robinson, 692 So.2d at 886-87,

with State v. Brown, 300 N.C. 41, 265 S.E.2d 191, 195 (1980). Section 812.13(1), Florida Statutes (2000), defines robbery as

the taking of money or other property which may be the subject
...

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    ...does not effectuate legislative intent, there is ordinarily no good reason to alter the interpretation.” Clark v. State, 823 So.2d 809, 811 (Fla. 1st DCA 2002) (emphasis added) (first citing State v. Hall, 641 So.2d 403, 405 (Fla.1994) ; then citing B & L Servs. v. Coach USA, 791 So.2d 1138......
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    ...equivalent, the trial court must compare the elements of the out-of-state crime to the elements of the Florida crime. Clark v. State, 823 So.2d 809, 812 (Fla. 1st DCA 2002). The trial court is not allowed to consider facts from the trial to make a determination of whether the out-of-state c......
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