TORR R. NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nelson appeals the denial of his postconviction relief motion challenging his classification as a prisoner releasee reoffender (PRR) for battery convictions. The court held that battery of a person sixty-five years old or older does not constitute a forcible felony under the PRR statute because it lacks the statutory element of use or threat of physical force, and therefore reversed the PRR designation for those two counts.
Battery of a person sixty-five years old or older is neither an enumerated felony nor does it contain the necessary statutory element of 'the use or threat of physical force or violence against an individual' required for PRR designation. Therefore, Nelson cannot be sentenced as a PRR for the two battery offenses.
[1] A conviction for battery on a person sixty-five years or older is not a forcible felony for purposes of the Prisoner Releasee Reoffender statute if the use or threat of p…
[2] When determining whether an offense constitutes a forcible felony under the Prisoner Releasee Reoffender statute, the court must consider only the statutory elements of t…
Previewing 2 of 4 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“Battery of a person sixty-five years old or older is neither an enumerated felony nor does it contain the necessary element of 'the use or threat of physical force or violence against an individual.'”
Establishes the core holding that battery of elderly persons lacks a required statutory element for PRR classification
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNelson was convicted of one count of robbery and two counts of battery on a person sixty-five years old or older. He was sentenced on all three counts…
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ORFINGER, J.
Torr Nelson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Nelson was convicted of one count of robbery and two counts of battery on a person sixty-five years old or older. He was sentenced on all three counts as a prisoner releasee reoffender (PRR). In his motion for postconviction relief, Nelson alleged four grounds, one of which has merit.
The issue for resolution is whether the trial court erred in classifying Nelson as a PRR on the two convictions of battery of a person sixty-five years old or older, pursuant to section 784.08(2)(c), Florida Statutes (2004). In State v. Hearns, 961 So. 2d 211 (Fla.2007), the Florida Supreme Court looked at the elements of the offense charged, battery on a law enforcement officer, and determined that since a battery could include a mere touching, it would not necessarily be a forcible felony under the PRR statute. We conclude that Hearns applies to the instant charges and that Nelson is not subject to sentencing as a PRR for the two battery offenses. Battery of a person sixty-five years old or older is neither an enumerated felony nor does it contain the necessary element of “the use or threat of physical force or violence against an individual.” See § 784.08(2)(c), Fla. Stat. (2004); Hearns, 961 So. 2d at 216 (“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.’ ”).
Accordingly, we affirm the denial of Nelson’s motion for postconviction relief in all respects except as to his PRR designation on the two counts of battery on a person sixty-five years old or older. As to those two charges, we reverse and remand with directions that the PRR designation be stricken. Nelson need not be present at the time the sentence is corrected. See Highberger v. State, 863 So. 2d 1256, 1257 (Fla. 5th DCA 2004).
AFFIRMED in part; REVERSED in part; and REMANDED with directions.
GRIFFIN and MONACO, JJ., concur.
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Dwain D. Wright v. State, 13 So. 3d 520 (Fla. 3d DCA 2009)…s of age is not a qualifying offense. See § 775.082(9)(a)l., Fla. Stat. (2003). Under the PRR statute, this felony battery offense is not an enumerated felony and it does not fall within the catchall provision for forcible felonies. Nelson v. State, 987 So. 2d 1261, 1262 (Fla. 5th DCA 2008) (holding that the defendant may not be sentenced as a PRR for a conviction of battéry on a person sixty-five years of age or older); see State v. Hearns, 961 So. 2d 211 (Fla.2007). Accordingly, we affirm the summary denial…
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Erick Leslie Batta v. State (Fla. 5th DCA 2022)…ony under section 775.084(1)(d)1.a. Id. at 215. ---PAGE 4--- We also note that our Court has previously relied on Hearns to conclude that battery on a person over 65 is not a forcible felony for purposes of a PRR sentence. See Nelson v. State, 987 So. 2d 1261, 1262 (Fla. 5th DCA 2008). We find that the same analysis applied in Hearns and Nelson is appropriate here with regard to the facts of our case because battery on a person over 65 is a simple battery that does not necessarily require physical f…
Authorities Cited
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- Joshalynne D. Highberger v. State, 863 So. 2d 1256 (Fla. 5th DCA 2004)