AAHTRELL JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnson challenged his sentence enhancement as a Prison Releasee Reoffender, arguing that battery on a law-enforcement officer and escape do not qualify as forcible felonies under Florida law because they lack a necessary element of threat or use of physical force. The court agreed that neither offense constitutes a forcible felony and therefore reversed the enhancement, remanding for resentencing.
Neither battery on a law-enforcement officer nor escape contains as a necessary statutory element the use or threat of physical force or violence against any individual, and therefore neither qualifies as a forcible felony under the Prison Releasee Reoffender statute. The sentence enhancement was illegal and the case must be remanded for resentencing.
[1] Issues that were or could have been litigated at trial and on direct appeal are not cognizable in a collateral postconviction motion.
[2] The Prison Releasee Reoffender enhancement of sentences is illegal when the underlying offenses do not contain as a necessary element the use or threat of physical force…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”
Establishes that the court properly rejected Johnson's first three claims as not cognizable in a 3.850 motion.
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of battery on a law-enforcement officer and escape. His sentences were enhanced under the Prison Releasee Reoffender statute. On…
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PER CURIAM.
The appellant has filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 in which he raises four claims. The first three, alleging prosecutorial misconduct, insufficiency of the evidence to prove escape, and trial court error, are not cognizable in a collateral postconviction motion. See Smith v. State, 445 So. 2d 323, 325 (Fla.1983) (“Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack.”).
However, claim four — that the Prison Releasee Reoffender enhancement of his sentences imposed for battery on a law-enforcement officer and escape is illegal—has merit. See State v. Hearns, 961 So. 2d 211, 216 (Fla.2007) (“We reiterate that the only relevant consideration [when determining whether an offense constitutes a ‘forcible felony’] is the statutory elements of the offense. If ‘the use or threat of physical force or violence against any individual’ 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 [Florida Statutes].’ ”); Tumblin v. State, 965 So. 2d 354 (Fla. 4th DCA 2007).
Neither offense contains as a necessary element “the use or threat of physical force or violence against any individual” and thus the appellant does not qualify to have his sentences enhanced via the Prison Releasee Reoffender statute. We remand for a full sentencing hearing because once the trial court determined that the appellant qualified to be sentenced as a Prison Releasee Reoffender, it was without discretion as to the length of sentence imposed.
However, the record indicates that the court found that the appellant qualified to be sentenced as a Habitual Felony Offender or Habitual Violent Felony Offender. During resentencing, the court may impose any sentence and sentence enhancement which may legally be applied.
REVERSED AND REMANDED.
WOLF, LEWIS, and ROBERTS, JJ., concur.
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Pryear v. State, 243 So. 3d 479 (Fla. 1st DCA 2018)
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Floyd v. State, 257 So. 3d 1148 (Fla. 1st DCA 2018)
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Hamilton v. State, 14 So. 3d 1089 (Fla. 5th DCA 2009)…iction claim. In other words, if there was sufficient evidence to support a conviction using a principals theory, that same evidence would have been sufficient to justify giving the principals instruction in the first instance. See Johnson v. State, 985 So. 2d 1215 (Fla. 1st DCA 2008) (holding that insufficiency of evidence not cognizable in postconviction claim); Jackson v. State, 640 So. 2d 1173 (Fla. 2d DCA 1994) (same). AFFIRMED. GRIFFIN and MONACO, JJ., concur.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- Smith v. State, 445 So. 2d 323 (Fla. 1983)
- Tavorris Tumblin v. State, 965 So. 2d 354 (Fla. 4th DCA 2007)