JAMES BRUCE MILLER

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

Case No. 5D21-676 JAMES BRUCE MILLER, Appellant, v. STATE OF FLORIDA,

Appellee. _______________________________ / Opinion filed July 2, 2021 3.850 Appeal from the Circuit Court for Brevard County, David C. Koenig, Judge. James Bruce Miller, Lake City, pro se. Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

James Bruce Miller appeals the partial denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure

4 any contention that the postconviction court erred in denying those claims. See Austin v. State, 968 So. 2d 1049, 1049–50 (Fla. 5th DCA 2007) (citing Marshall v. State, 854 So. 2d 1235 (Fla. 2003)). The PRR statute provides, in relevant part: (9)(a)1. “Prison releasee reoffender” means any defendant who commits, or attempts to commit: . . . . g. Robbery; . . . . j. Aggravated assault with a deadly weapon; . . . . within 3 years after being released from . . . a correctional institution of another state, . . . following incarceration for an offense for which the sentence is punishable by more than 1 year in this state. § 775.082(9)(a)1., Fla. Stat. (emphasis added). The elements of an out-of-state conviction must be sufficient to constitute a felony under Florida law. See Hankins v. State, 42 So. 3d 871, 873 (Fla. 2d DCA 2010). In Florida, tampering with an electronic monitoring device is a third-degree felony with an offense level of 1. See §§ 921.0023(1),

5 948.11(7), Fla. Stat. (2011).3 However, an attempted third-degree felony with an offense level of 1 is a first-degree misdemeanor punishable by no more than one year in prison. See §§ 775.082(4)(a), 777.04(4)(d)–(e), Fla. Stat. (2011). Miller alleges that his Kansas conviction was for attempted electronic monitor tampering, as opposed to the completed offense. Despite providing Miller’s release date, the attached records do not indicate whether his Kansas conviction was for the completed offense or attempted offense.4 If Miller’s conviction was for attempted tampering with an electronic monitoring device, then that conviction could not be used to qualify him as a PRR for purposes of sentencing. See §§ 775.082(9)(a)1., 777.04(4)(e), 921.0023(1), Fla. Stat. Accordingly, the attached records do not conclusively refute that 3 The penalty for tampering with an electronic monitoring device is now codified under section 843.23, Florida Statutes (2016), which became effective October 2016. It remains a third-degree felony with an offense level of 1. § 843.23, Fla. Stat. 4 An online search of the Kansas Department of Corrections website reflects that Miller was convicted of attempted tampering of an electronic monitoring device. The county court online docket further reflects that Miller pled to the offense of attempted tampering of an electronic monitoring device. These records are not official, nor are they part of the record before this Court. While we cannot rely upon those records to resolve this claim, they are worth noting because Miller’s position appears to be correct and supports the need for an evidentiary hearing.