ERICK LESLIE BATTA vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: August 12, 2022
• Docket: 21-1655
• Status: Published

Opinion

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

ERICK LESLIE BATTA,

Appellant,

v. Case No. 5D21-1655 LT Case No. 2018-CF-001960-A

STATE OF FLORIDA,

Appellee.

_______________________________/

Opinion filed August 12, 2022

Appeal from the Circuit Court for Hernando County, Stephen E. Toner, Jr., Judge.

Matthew J. Metz, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Appellee.

WALLIS, J. Appellant appeals his judgment and sentence following his conviction

for felony battery. He argues that his trial counsel was ineffective on the

face of the record and that the trial court erred by sentencing him as a violent

career criminal (VCC). We affirm Appellant's ineffective assistance of

counsel claims without further elaboration but reverse Appellant's VCC

designation and remand for the trial court to resentence him accordingly.

The State charged Appellant with aggravated battery with a deadly

weapon and pursued a VCC designation. At the sentencing hearing, the trial

judge ruled that Appellant met the criteria to be sentenced as a

VCC. Specifically, the trial court found that Appellant had met the

requirements of section 775.084(1)(d), Florida Statutes (2021), due to his

prior convictions for battery on a person over 65, aggravated assault with a

deadly weapon, and aggravated assault with a firearm. Of particular

importance to this appeal, the trial judge ruled that battery on a person over

65 meets the definition of a qualifying offense under the VCC statute

because it is a felony battery. The trial court then sentenced Appellant to

fifteen years with a ten-year minimum mandatory.

In order to sentence a defendant as a VCC, a sentencing court must

determine that the defendant meets the requirements of section

775.084(1)(d). Importantly, section 775.084(1)(d)1. requires that a defendant

2 be convicted of at least three violent qualifying felonies that are enumerated

in that statute. Among the list of crimes listed is the catch all phrase, "[a]ny

forcible felony, as described in s. 776.08." § 775.084(1)(d)1.a., Fla. Stat.

Looking to the text of section 776.08, Florida Statutes (2021), a forcible

felony is defined, in part, as "any other felony which involves the use or threat

of physical force or violence against any individual."

Appellant argues that his prior conviction of battery on a person over

65 was not a forcible felony under section 775.084(1)(d)1.a., and therefore,

the trial court erred in sentencing him as a VCC. The State does not dispute

Appellant's argument; rather, it acknowledges the decision in State v.

Hearns, 961 So. 2d 211 (Fla. 2007), where the Florida Supreme Court ruled

that battery on a law enforcement officer is not a forcible felony for purposes

of a VCC sentence. The Hearns opinion reasoned that battery on a law

enforcement officer, which consists of a simple battery under section

784.03(1)(a), Florida Statutes (2006), and an enhancement under section

784.07, Florida Statutes (2006), may be committed by a simple touching or

nominal contact and does not necessarily require physical force or violence.

Id. at 213–15. Therefore, because battery on a law enforcement officer does

not necessarily require physical force or violence, it cannot be a forcible

felony under section 775.084(1)(d)1.a. Id. at 215.

3 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

force or violence, and thus, cannot be a forcible felony under section

775.084(1)(d). Consequently, Appellant's conviction for battery on a person

over 65 cannot support his VCC sentence. We thereby reverse and remand

with instructions for the trial court to strike Appellant's designation as a VCC

and to resentence him accordingly.

AFFIRMED in Part; REVERSED in Part; REMANDED with Instructions.

EVANDER and HARRIS, JJ., concur.