Wе have for review a decision of the Fifth District Court of Appeal on the following question certified to be of great public importance:
MAY AN OUT-OF-STATE CONVICTION WHICH IS A MISDEMEANOR IN THAT STATE, BUT WHICH IS SUBSTANTIALLY SIMILAR TO A FLORIDA STATUTE IN ELEMENTS AND PENALTIES, BE DEEMED A “QUALIFIED OFFENSE” UNDER SECTION 775.084 AND USED TO IMPOSE A HABITUAL OFFENDER SENTENCE?
O’Neill v. State,
On May 31, 1992, Petitioner Kevin O’Neill was arrested aftеr he was involved in a traffic accident which claimed the lives of two police officers in Brevard County. Petitioner was convicted of two counts of DUI/manslaughter in the circuit court, see § 316.193(3)(c)3, Fla.Stat. (1995), and sentenced to two thirty-year concurrent habitual offender sentences.
For a court to sentence a defendant as a habitual felony offender under section 775.084, Florida Statutes (1995), it must find that the defendаnt has previously been convicted of any combination of two or more felonies in this state or two or more other qualified offenses. Id. § 775.084(l)(a)l.
any offense, substantially similar in elemеnts 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 onе year.
Id § 775.084(l)(d). Under this statutory definition, a similarity in elements of the offenses being compared, coupled with a penalty for the out-of-state conviction in excess of one year’s imprisonment, will render an out-of-state conviction a “qualifying offense.” The plain language of this statutory definition also indicates that the label given the out-of-state offense by the other jurisdiction is not controlling. The penalty provision ensures that the other jurisdiction provides a penalty that would make the offense a felony in Florida. Hence, if the other jurisdiction provides a penalty .of a year or less for an offense, that offense cannot serve as a “qualifying offense” in Florida because such a pеnalty makes the offense a misdemeanor in Florida.
The South Carolina statute under which O’Neill was previously convicted provides, in pertinent part:
(c) It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a prаctitioner while acting in the course of his professional practice, or except as otherwise authorized by this article.
(d) A person who violates subsection (c) with respect to:
(1) a controlled substance classified in Sсhedule 1(b) and (c) which is a narcotic drug or lysergic acid diethylamide (LSD) and in Schedule II which is a narcotic drug is guilty of a misdemeanor and, upon conviction, must be imprisoned not morе than two years or fined not more than five thousand dollars, or both. For a second offense, the offender is guilty of a felony and, upon conviction, must be imprisonednot more thаn five years or fined not more than five thousand dollars, or both. For a third or subsequent offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not more than fivе years or fined not more than ten thousand dollars, or both.
S.C.Code Ann. § 44-53-370(c), (d) (Law. Coop.1995). Cocaine is considered a Schedule II controlled substance under South Carolina law. Id. §§ 44-53-110, 44-53-210. Petitioner asserts that his South Carolina conviction under this statute is not a qualifying offense because (1) it is a misdemeanor in South Carolina, and (2) it is most similar to Florida’s misdemeanor offensе for possession of marijuana.
As noted above, to constitute a “qualifying offense” under section 775.084 the out-of-state conviction must be “substantially similar in elements and penalties to an offense in this state” and must be punishable by imprisonment over one year. Section 893.13(6)(a), Florida Statutes (1995),
It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
We agree with the trial court and the district court that section 893.13(6)(a) is sufficiently “substantially similar” to South Carolina’s statute to allow the use of the South Carolina conviction as a qualifying offense. The only significant difference in the provisions of the Florida and South Carolina statutes is the two-year maximum for a first offense provided in South Carolina compared to the five-year maximum in Flоrida. In Florida, possession of cocaine, which is a third-degree felony, may be punished by a term of imprisonment not exceeding five years and/or a fine of $5,000. See id. § 775.083(l)(e). A two-year mаximum prison sentence in Florida would, however, qualify the offense as a felony.
Petitioner seeks to elevate form over substance by using the designated degree of offensе of “misdemeanor” as provided in the South Carolina statute as the sole benchmark for judging similarity. We find the district court’s analysis of the issue to be right on point:
[W]e conclude the South Cаrolina conviction constitutes a qualified offense under Florida’s habitual offender statute. In either South Carolina or Florida, possession of cocaine subjects the perpetrator to imprisonment for more than one year, and a fine of up to $5,000. Moreover, the actual language of the two statutes is substantially similar, and in part, contаins virtually identical language. Pursuant to section 775.084(e), it is not necessary that the statutes mirror one another. The out-of-state conviction need only be “substantially similar” to section [893.13(6)(a) ] in elements and penalties. Although South Carolina has labeled this offense a “misdemeanor,” it has imposed punishment which is equivalent to punishment for a felony in Florida.
O’Neill,
Acсordingly, we answer the certified question in the affirmative and approve the district court decision.
It is so ordered.
Notes
. O’Neill conceded that his scoresheet totaled 275 points, placing him in a recommended range of 17 to 22 years and a permitted range of 12 to 27 years. The maximum statutory term of incarceration applicable to a sеcond-degree felony, absent habitual offender treatment, is fifteen years. O’Neill,
. Besides the question certified by the district court, petitioner presents two additional issues for our rеview. We decline to address those issues.
. Section 775.084(l)(a)2, which is also relevant, requires that:
The felony for which the defendant is to be sentenced was committed within 5 years of the dаte of the conviction of the defendant's last prior felony or other qualified offense, or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later.
Petitioner doеs not contend that the trial court erred in applying this provision. The court ha-bitualized petitioner based on a 1981 conviction for "aggravated trafficking in narcotics" and а 1988 South Carolina conviction for "possession of cocaine."
. Under Florida Statutes, cocaine is also considered a Schedule II controlled substance. See id. §§ 893.02(4), 893.03(2)(a)4.
. Although the South Carolina statute requires knowing and intentional possession, and the Florida statute requires actual or constructive possession, we can discern no substantial difference between the two. "Knowingly" means with actual knowledge and understanding of the facts. Shaw v. State,