Hearns v. StateHearns v. State
FLETCHER, Judge.
Bill Monroe Hearns seeks rehearing from this court‘s January 22, 2003 opinion affirming denial of post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We grant rehearing, withdraw our previous opinion, and substitute the following.
In 2000, Hearns was convicted after jury trial of unlawful possession of a firearm by a thrеe-time convicted felon. Before trial, pursuant to defense counsel‘s advice, Hearns stipulated that he had the requisite prior felony offenses enumerated in section 775.084(1)(c)1., Florida Statutes (1998 Supp.).1 As a result of that stipulation, the jury was instructed that Hearns had been
One of the felony convictions the trial court relied upon to apply VCC sentencing was Hearns’ 1985 conviction for battery on a law enforcement officer. As this court has previously determined, in order to qualify as a “forcible felony” under the statute the offense must bе one that involves the “use or threat of physical force or violence against аny individual.”
Battery on a law enforcement officer then, is not invariably a qualified offense for VCC sentencing. As the Florida Supreme Court has noted,
“The statutе does not say that a forcible felony is any felony that `may sometimes’ involve violencе, or even a felony that `frequently does’ involve violence. Rather, the statute requires thаt the felony actually `involves the use or threat of physical force or violence against any individual.’ (emphasis added)....
Thus, in the strict and literal sense required by Florida law, this language can оnly mean that the statutory elements of the crime itself must include or encompass conduсt of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of the final clause of section 776.08.”
Perkins v. State, 576 So.2d 1310, 1313 (Fla. 1991).
As Heаrns points out, simple battery is a misdemeanor, which becomes a felony because of the status of the victim. The State has not shown with any certainty (has not shown at all, in fact) whether thе battery on a law enforcement officer was a mere unwanted touching, see section 784.03(1)(a), Florida Statutes (1985), or caused bodily harm, see section 784.03(1)(b), Florida Statutes (1985). With regard to the appliсation of a criminal statute, it is fundamental that a court must construe the statute strictly in favor of the accused. See
The State argues that Hearns’ stipulation that he had the three requisite prior forcible felonies bars post-conviction relief on that issue. We disagree. The record shows that defense counsel advised Hearns to stipulate that he had been convicted of three felonies, when one of the offenses relied upon was not a qualifying “forcible felony” offense. Thus, but for the faulty stipulation Hearns would not have been sentenced as a VCC. We conclude that Hearns’ stipulation does not bar post-conviction relief because the underlying substantive offense necessary for such sentencing does nоt exist. See Lee v. State, 731 So.2d 71 (Fla. 2d DCA 1999).
In light of the foregoing, we find that Hearns did not qualify for sentencing as a VCC. We reverse the ordеr denying post-conviction relief and remand with directions that Hearns be resentenced in
Reversed and remanded.
Notes
....
(c) `Violent career criminal’ means a defendant for whom the сourt must impose imprisonment pursuant to paragraph (4)(c), if it finds that:
1. The defendant has previоusly been convicted as an adult three or more time for an offense in this state or othеr qualified offense that is:
a. Any forcible felony, as described in s. 776.08;
b. Aggravated stalking, as described in s. 784.048(3) and (4);
c. Aggravated child abuse, as described in s. 827.03(2);
d. Aggravated abuse of an elderly рerson or disabled adult, as described in s. 825.102(2);
e. Lewd, lascivious, or indecent conduct, as described in s. 800.04;
f. Escape, as described in s. 944.40; or
g. A felony violation of chapter 790 involving the use or possession of a firearm.”