SANTIAGO V. STATE

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SANTIAGO V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 11-2193

Case Date: 12/14/2011

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2011
Opinion filed December 14, 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D11-2193 Lower Tribunal No. 99-18084 ________________

Anthony Santiago,
Appellant, vs.

State of Florida,
Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Monica Gordo, Judge. Anthony Santiago, in proper person. Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

Before WELLS, C.J., and SHEPHERD and EMAS, JJ. EMAS, J.

Anthony Santiago appeals the trial court's denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons which follow, we vacate the sentence and remand for a new sentencing hearing. Santiago was charged with, and convicted of, burglary of a conveyance with an assault or battery, in violation of section 810.02(2)(a), Florida Statutes (1999). The State followed the procedure required to have Santiago declared a prison releasee reoffender, pursuant to section 775.082, Florida Statutes (2009). Following a sentencing hearing, the trial court found that Santiago qualified as a prison releasee reoffender and sentenced him to life in prison. After his conviction and sentence was affirmed on appeal, Santiago filed a motion to correct illegal sentence, contending that the crime of burglary of a conveyance with an assault or battery is not a qualifying offense for purposes of the prison releasee reoffender statute. We agree. The prison releasee reoffender ("PRR") statute establishes enhanced and mandatory sentences under certain defined circumstances and for certain enumerated felonies. releasee reoffender": 1. "Prison releasee reoffender" means any defendant who commits, or attempts to commit: a. Treason; b. Murder; 2 Section 775.082(9)(a), Florida Statutes defines "prison

c. Manslaughter; d. Sexual battery; e. Carjacking; f. Home-invasion robbery; g. Robbery; h. Arson; i. Kidnapping; j. Aggravated assault with a deadly weapon; k. Aggravated battery; l. Aggravated stalking; m. Aircraft piracy; n. Unlawful throwing, placing, or discharging of a destructive device or bomb; o. Any felony that involves the use or threat of physical force or violence against an individual; p. Armed burglary; q. Burglary of a dwelling or burglary of an occupied structure; or r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827. 071, or s. 847.0135(5); within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor or within 3 years after being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state. (Emphasis supplied). The State acknowledges that the crime of burglary of a conveyance with an assault or battery is not a specifically enumerated offense under section 775.082(9)(a). However, the State contends that it is a qualifying offense under the so-called "catchall" provision, section 775.082(9)(a)1.o ("Any felony that 3

involves the use or threat of physical force or violence against an individual"). The State argues that, because the crime at issue requires the State to prove that the defendant committed either a battery or an assault in the course of the burglary, such an offense necessarily involves the "use or threat of physical force or violence." The Florida Supreme Court has held that, in determining whether an offense qualifies under PRR as one involving the use or threat of physical force or violence, we are to look to the essential elements of the offense charged, rather than the proof presented at trial. Perkins v. State, 576 So. 2d 1310 (Fla. 1991). In Perkins, the defendant was charged with attempted cocaine trafficking and first-degree murder. His defense was self-defense, and the State contended that self-defense was not available to Perkins because he was committing a "forcible felony" at the time of his actions in purported self-defense.1 Section 776.08, Florida Statutes (1995) defines "forcible felony" by listing a number of offenses (e.g., murder, manslaughter, sexual battery, kidnapping, robbery, etc.) and providing a catchall: "any other felony which involves the use or threat of physical force or violence against any individual."2 Because drug trafficking is not

Under section 776.041(1), Florida Statutes (1987), the defense of self-defense is not available to a person who is "attempting to commit, committing or escaping after the commission of a forcible felony. . . ." 2 This is the exact same language found in section 775.082(9)(a)1.o of the PRR statute. 4

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included in the list of enumerated forcible felonies, the question presented was whether drug trafficking constituted a forcible felony, as one "which involves the use or threat of physical force or violence against any individual." Perkins, 576 So. 2d at 1313. The trial court had determined that drug trafficking did meet the definition, because of the propensity for violence inherent in narcotics trafficking. The Florida Supreme Court disagreed with this analysis: The statute does not say that a forcible felony is any felony that "may sometimes involve violence, or even a felony that "frequently does" involve violence. Rather, the statute requires that the felony actually "involves the use or threat of physical force or violence against any individual" (emphasis added). Taken in its ordinary and plain meaning, the term "involve" means "to contain within itself, to make necessary as a condition or result." Its general sense is "to include." Thus, in the strict and literal sense required by Florida law, this language can only mean that the statutory elements of the crime itself must include or encompass conduct 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. Id. (citations omitted). Based upon this analysis, Perkins held that trafficking in cocaine is not a forcible felony. Id. In Hearns v. State, 961 So. 2d 211 (Fla. 2007), the Florida Supreme Court reaffirmed its holding in Perkins, and extended the analysis to a similar catchall

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provision of the Violent Career Criminal ("VCC") statute.3

In Hearns, the

defendant was convicted of unlawful possession of a firearm by a convicted felon. The State sought an enhanced sentence under the VCC statute based upon defendant's prior conviction for battery on a law enforcement officer. The VCC

statute, like the forcible felony statute and the PRR statute, contains a list of enumerated offenses. Additionally, the VCC statute provides that "any forcible felony, as described in s. 776.08" is a qualifying offense under the statute. Thus the question facing the Court was whether battery on a law enforcement officer is a forcible felony; that is whether battery on a law enforcement officer is a felony that involves the use or threat of force or physical violence against any individual. The Florida Supreme Court answered the question in the negative, holding that, "in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular circumstances involved." Id. at 212. In doing so, the Court addressed the analysis of the district court: The [district] court began its analysis by reviewing the elements of the BOLEO [Battery On Law Enforcement Officer] statute. It noted that BOLEO may be committed either by intentionally touching a law enforcement officer against his will, or by intentionally causing a law enforcement officer bodily harm. The court held that when BOLEO is committed by intentionally touching a law enforcement officer, it does not involve the use or
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