Carlos J. Acevedo v. State of Florida
218 So. 3d 878
| Fla. | 2017Background
- Carlos Acevedo was convicted in 1982 under §800.04 (1981) for lewd or lascivious acts against a child; later convicted of multiple lewd and lascivious offenses and designated a Dangerous Sexual Felony Offender (DSFO) with a mandatory 25‑year minimum.
- Acevedo filed a Florida Rule of Criminal Procedure 3.800(a) motion arguing his 1981 conviction did not qualify as a prior “offense under a former statutory designation which is similar in elements” to the offenses enumerated in the DSFO statute, §794.0115(2)(e) (2005).
- The Fourth District affirmed the DSFO designation, concluding the 1981 statute’s elements are similar (not identical) to §800.04(4)–(5) (2005). The Fourth District certified conflict with the Fifth District’s decision in Durant.
- The Florida Supreme Court granted review to resolve the conflict and considered whether “similar in elements” requires identical elements or merely substantial similarity.
- The Court, reviewing de novo, held that the DSFO statute requires similarity of elements, not identity, and approved the Fourth District’s decision; it disapproved Durant to the extent inconsistent.
Issues
| Issue | Plaintiff's Argument (Acevedo) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a prior conviction under §800.04 (1981) qualifies as an "offense under a former statutory designation which is similar in elements" to offenses enumerated in §794.0115(2)(e) (2005) | The 1981 statute differs materially (e.g., contains "without the intent to commit sexual battery," different age ranges and lacks specific body‑part touching or sexual‑activity elements), so it is not similar to §800.04(4)/(5) (2005). | The 1981 statute proscribes substantially the same lewd/touching conduct on minors and is sufficiently similar in elements to the 2005 enumerated offenses; DSFO designation is proper. | The Court held similarity, not identity, is required; the 1981 statute is sufficiently similar to the 2005 provisions, so the prior conviction qualified for DSFO treatment. |
| Whether courts may rely on the underlying factual conduct of the prior conviction when assessing similarity | Acevedo argued underlying facts should not expand the statute; similarity must be determined by statutory elements. | State relied primarily on element similarity but the Fourth District also referenced Acevedo’s underlying conduct. | The majority held element comparison is sufficient; consideration of underlying facts was unnecessary here. (Concurring justice would forbid reliance on underlying facts.) |
| Whether Durant (Fifth District) is correct that the prior statute is not similar | Acevedo and concurring justice endorsed Durant's narrower analysis. | State urged the Fourth District's broader similarity test; Supreme Court majority agreed with Fourth District. | The Court disapproved Durant to the extent it required greater identity than similarity. |
| Whether any error was harmless given the sentence imposed | Acevedo contended designation affected mandatory minimum exposure. | State noted trial court could lawfully have imposed life without DSFO designation. | Concurring justice found any error harmless under Brooks; majority resolved on statutory similarity and affirmed designation. |
Key Cases Cited
- Dautel v. State, 658 So.2d 88 (Fla. 1995) (courts should compare statutory elements, not underlying factual conduct, when analogizing offenses)
- Durant v. State, 94 So.3d 669 (Fla. 5th DCA 2012) (held prior §800.04 language not similar to §800.04(4)–(5) (2005) for DSFO purposes)
- Plott v. State, 148 So.3d 90 (Fla. 2014) (statutory interpretation reviewed de novo)
- Brooks v. State, 969 So.2d 238 (Fla. 2007) (harmless‑error standard for Rule 3.800(a) motions: sentence need not be vacated if same sentence could lawfully have been imposed)