Jenkins v. State, 1D03-1066.

• Decision Date: 11 October 2004
• Docket Number: No. 1D03-1066.,1D03-1066.
• Citation: 884 So.2d 1014
• Parties: Kenneth JENKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

884 So.2d 1014

Kenneth JENKINS, Appellant, v. STATE of Florida, Appellee.

No. 1D03-1066.

District Court of Appeal of Florida, First District.

October 11, 2004.

Rehearing Denied in Part and Granted in Part October 11, 2004.

Nancy A. Daniels, Public Defender, and John R. Alfino, Assistant Public Defender, Tallahassee, for Appellant.

Charles J. Crist, Jr., Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

On consideration of appellant's motion for rehearing, we withdraw our prior opinion and substitute the following.

Kenneth Jenkins appeals three of four sentences imposed in consequence of convictions arising out of two separate criminal episodes. He contends that the trial court erred by imposing ten-year sentences for convictions on Counts I, battery of a law enforcement officer, and IV, resisting an officer with violence, because the sentences exceed the statutory maximum for third-degree felonies; by imposing a consecutive sentence for the conviction on Count III, fleeing or attempting to elude arrest, because, he alleges, all four convictions arose from what was really a single criminal episode; and, finally, by imposing a sentence under the Prison Releasee Reoffender Punishment Act for the conviction on Count I, because battery of a law enforcement officer is not, he contends, a qualifying offense. We affirm the sentence for Count III, but reverse the sentences for Counts I and IV.

On Jenkins's motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b), the trial court struck the habitual felony offender designation for the sentences earlier imposed on the Count I and IV convictions, but did not reduce the ten-year habitual felony offender sentences to the five-year statutory maximums that apply, absent habitualization. Because both resisting an officer under section 843.01, Florida Statutes (2002), and battery of a law enforcement officer under section 784.07(2)(b), Florida Statutes (2002), are third-degree felonies subject to maximum sentences of five years under section 775.082(9)(a)(3)(d), Florida Statutes (2002), we reverse the ten-year sentences imposed for those offenses and remand for resentencing.

We affirm the consecutive habitual felony offender sentence for Count III, because Jenkins's act of fleeing or attempting to elude two officers who were in their patrol vehicles with sirens and lights activated, in violation of section 316.1935(2), Florida Statutes (2002), occurred in a different location and at a different time than the other three offenses, which arose from Jenkins's earlier conduct toward an officer who was on bicycle patrol. See Hale v. State, 630 So.2d 521, 524 (Fla.1993); Murray v. State, 491 So.2d 1120, 1124 (Fla.1986); Parker v. State, 633 So.2d 72, 74 (Fla. 1st DCA 1994).

Finally, we reject appellant's contention that the Prison Releasee Reoffender Punishment Act does not apply to the battery of a law enforcement officer which was proven in this case. See Branch v. State, 790 So.2d 437, 439 (Fla. 1st DCA 2000) ("The appellant meets the criteria for classification as a prison releasee reoffender, for within three years of his 1996 release from a D.O.C. state correctional facility, he committed battery on a law enforcement officer, a qualifying offense that falls within the ambit of statutory subsection (8)(a)(1)(o), which includes `[a]ny felony that involves the use or threat of physical force or violence against an individual.'"). Although acquitted of using an automobile as a deadly weapon on Count I, Mr. Jenkins was convicted on that count of "intentionally touching or striking Victor Pacheco against his will," and he was also found guilty, on another count tried simultaneously, of "driv[ing] his vehicle directly toward Officer Pacheco which created a well-founded fear in Victor Pacheco that violence was imminent." See generally Lane v. State, 867 So.2d 539, 541 (Fla. 1st DCA 2004) (considering simultaneous verdict on related count in upholding conviction). In the present case, whatever the rule when the jury fails to find even threatened violence, appellant's "battery on a law enforcement officer is a qualifying offense for prison releasee reoffender sentencing. See Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000)." Brown v. State, 789 So.2d 366, 367 (Fla. 2d DCA 2001).

In sum, we affirm the sentence imposed for fleeing or attempting to elude arrest, but reverse the sentences imposed for battery of a law enforcement officer and for resisting an officer with violence, and remand for resentencing.

LEWIS, J., concurs; ERVIN, J., concurs and dissents with opinion. ERVIN, J., concurring and dissenting.

I concur with the majority's affirmance of the consecutive sentence for the conviction on Count III, and with its reversal of the ten-year sentences for Counts I and IV. I dissent, however, from the majority's decision to remand Count I, battery of a law-enforcement officer (LEO), for resentencing under the Prison Releasee Reoffender (PRR) Act. I would reverse and remand with directions to vacate the PRR designation, because the state failed to establish that it was a qualifying offense under the PRR Act.

This is a case of first impression. In a number of cases, appellate courts have stated in dicta that battery of an LEO qualifies for PRR sentencing under the catch-all provision of the PRR statute, section 775.082(9)(a)(1)(o), which, rather than identifying a specific crime, authorizes a PRR sentence for "[a]ny felony that involves the use or threat of physical force or violence against an individual." See Branch v. State, 790 So.2d 437 (Fla. 1st DCA 2000); Brown v. State, 789 So.2d 366 (Fla. 2d DCA 2001); Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000) (en banc). See also Robinson v. State, 751 So.2d 737 (Fla. 1st DCA 2000), approved in part, 793 So.2d 891 (Fla.2001). None of the above cases, however, has addressed the issue now before us.

Jenkins' conviction for battery of an LEO was based upon evidence showing that he drove his vehicle toward Officer Victor Pacheco, who was dismounting his bicycle while attempting to flag Jenkins down, that Jenkins' vehicle struck the bicycle, which in turn was propelled onto Officer Pacheco, causing a slight abrasion to his leg. Jenkins contends that under section 784.03, Florida Statutes (2002), battery may consist merely of an unwanted touching and does not necessarily involve either the use or threat of physical force or violence, as required by the catch-all provision of the PRR statute. In the alternative, Jenkins claims that battery can be a qualifying offense only if the jury finds an intent to harm; I agree with both arguments.

Section 784.03 provides, in pertinent part:

(1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.

In my opinion, battery under subsection (1)(a)(1) cannot be considered a qualifying offense, because the statutory definition prohibits acts that do not necessarily involve physical force or violence, while an offense under subsection (1)(a)(2) does necessarily involve physical force or violence, and thus can qualify for PRR sentencing. Before a trial court may impose a PRR sentence based upon subsection (1)(a)(2), however, the jury must have specifically found that the defendant violated that subsection. In this case, the jury found Jenkins guilty of battery under a general verdict that did not distinguish between subsections (a)(1) and (a)(2).

I. Battery under Section 784.03(1)(a)(1)

Because the statutory elements of battery under subsection (1)(a)(1) do not require proof that the offensive touching involved "physical force or violence," it cannot be a qualifying offense for PRR sentencing. In Hudson v. State, 800 So.2d 627 (Fla. 3d DCA 2001) (on mot. for reh'g), the trial court sentenced Hudson as a violent career criminal to 40 years in prison with a 30-year mandatory minimum, pursuant to section 775.084(1)(c)(1)(a), Florida Statutes (Supp. 1998), which authorizes enhancement if a defendant is convicted of committing a forcible felony, as defined in section 776.08, Florida Statutes, which includes any felony involving "the use or threat of physical force or violence against any individual," identical to the catch-all PRR provision at issue herein. Hudson was convicted of throwing a deadly missile into a hotel lobby, in violation of section 790.19, Florida Statutes (1997), which prohibits shooting or throwing a deadly missile into a structure, whether occupied or unoccupied. Because violation of the statute did not necessarily involve physical force or violence against an individual, the Third District concluded that it could never be a qualifying offense under the violent-career-criminal statute, even if there had been a jury finding that the hotel was occupied, because qualifying offenses must be based upon their statutory definitions.

The Hudson court cited Perkins v. State, 576 So.2d 1310 (Fla.1991), wherein the supreme court was asked to decide whether Perkins could raise the defense of self-defense, because he was charged with killing a man with whom he had negotiated a drug deal, and section 776.041(1), Florida Statutes, precludes a claim of self-defense if a defendant uses deadly force while committing a forcible felony. The court decided that drug trafficking is not necessarily an offense "that involves the use or threat of physical force or violence against any individual," regardless of the evidence in the case, and regardless of the fact that there is a "`propensity for violence inherent in narcotics trafficking.'" Id. at 1313 (quoting State v. Perkins, 558 So.2d 537, 538 (Fla. 3d DCA 1990)). This is because the dictionary definition of the term "involve," as used in the catch-all provision for forcible felonies, means "to contain within...