Florida/Georgia Personal Injury & Workers Compensation

...statute), and must have committed another such offense within the above time frame." Clines v. State, 912 So.2d 550, 553 (Fla.2005). The felonies that qualify for designation as a violent career criminal are: a. Any forcible felony, as described in s. 776.08; b....

...§ 775.084(1)(d)(1) (emphasis added). The statute does not specifically list BOLEO, or even battery, as a qualifying offense. Therefore, that crime qualifies only under the catchall provision in subsection (a), and only if it constitutes a "forcible felony, as described in" section 776.08, Florida Statutes (2000)....

...ssault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. § 776.08, Fla....

...e. The defendant claimed self-defense. The State argued that the defense was not available because at the time of the shooting the defendant was engaged in cocaine trafficking, which, the State argued, was a forcible felony under the final clause of section 776.08. We rejected that argument and articulated a "statutory elements" test for determining whether an offense is a forcible felony within the meaning of the final clause of section 776.08: 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). § 776.08, Fla....

...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. Perkins, 576 So.2d at 1313 (emphasis added). Therefore, Perkins held that for an offense to be a forcible felony under section 776.08, the "use or threat of physical force or violence" must be a necessary element of the crime....

...We reiterate that the only relevant consideration 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." Perkins, 576 So.2d at 1313....

...alifying offense under a similar statute. On this point, we agree with the Third District. At first blush, the district court's decision appears reconcilable with the other cases because they involve different statutes. Unlike Hearns, which involved section 776.08, the other districts have decided *217 this issue in the context of the prisoner releasee reoffender (PRR) statute, section 775.082, Florida Statutes (2000)....

...§ 775.082(9)(a)(1), Fla. Stat. (2000). As with the VCC statute, although the statute specifically names some types of batteries (sexual battery and aggravated battery), it does not mention BOLEO. Subsection (o), however, contains the same language as the final clause of section 776.08: "Any felony that involves the use or threat of physical force or violence against an individual." We have held that where the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply....

...This leaves intentional touching as the conduct element most likely to fail the Perkins test. We must determine whether intentionally touching a law enforcement officer necessarily involves the use or threat of physical force or violence as described in the final clause of section 776.08....

...A child shooting a spitball at a school police officer would be guilty of a forcible felony. The possibilities are limited only by the imagination. But such minor infractions are incompatible with the level of force the forcible felony statute contemplates. The felonies enumerated in section 776.08 include murder, treason, carjacking, home-invasion robbery, arson, kidnapping, discharging of a destructive device or bomb, and aircraft piracy. § 776.08, Fla....

...to life in prison. Such a disparity in sentencing, stemming from the exact same conduct, seems out of proportion. We also note that the forcible felony statute specifically enumerates two types of battery: aggravated battery and sexual battery. See § 776.08, Fla....

...BOLEO's absence from the list of enumerated felonies lends further support to the conclusion that BOLEO is not a forcible felony. III. CONCLUSION Based on the reasoning above, we approve the district court's reversal of Respondent's life sentence because BOLEO is not a forcible felony under section 776.08 and should not have been counted as a qualifying offense for VCC sentence enhancement....

...Florida Statutes. Under section 776.041(1), Florida Statutes (1987), the defense of self defense is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony. ... (Emphasis added.) Section 776.08, Florida Statutes (1987), defines "forcible felony" as: treason; murder; manslaughter; sexual battery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aircraft piracy; unlawful throwing, placing, or discha...

...uctions, it shall be construed most favorably to the accused. § 775.021(1), Fla. Stat. (1987). We thus must determine whether the district court honored the legal rule described here. This question hinges on the exact meaning of the final clause of section 776.08, Florida Statutes, which defines forcible felony to include "any other felony which involves the use or threat of physical force or violence against any individual" (emphasis added)....

...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). § 776.08, Fla....

...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. See § 776.08, Fla....

...rt was under an obligation to construe it in the manner most favorable to the accused. Art. I, § 9, Art. II, § 3, Fla. Const.; § 775.021(1), Fla. Stat. (1987); Brown; Palmer; Buchanan. In other words, a "forcible felony" under the final clause of section 776.08 is a felony whose statutory elements include the use or threat of physical force or violence against any individual. [5] We are mindful of the state's argument *1314 that the doctrine of ejusdem generis [6] requires that the language of section 776.08 be read, as the district court did, by looking behind its precise language....

...3d DCA 1990) (citing § 782.04, Fla. Stat. (1987)). Had this been the legislature's true intent, the legislature in all likelihood would have done the more logical thing and simply amended the statute that actually defines the term "forcible felony." § 776.08, Fla....

...Moreover, the manifest legislative intent is for chapter 776, defining justifiable uses of force, to operate as an exception to the homicide statutes contained in chapter 782. The district court's opinion reaches virtually the opposite conclusion and, in the process, exceeds the strict language of section 776.08....

...ng sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony.... Although a "forcible felony" as used in the statute includes an aggravated battery, see § 776.08, Fla....

...burglary and aggravated battery. We find no error. Under section 776.041(1), Florida Statutes (1987), self defense is legally unavailable to a person who "[i]s attempting to commit, committing, or escaping from the commission of, a forcible felony." Section 776.08 specifically defines "forcible felony" to include both burglary and aggravated battery....

..."Under the canon of statutory construction expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another." State v. Hearns, 961 So.2d 211, 219 (Fla.2007) (explaining the interpretive significance of the Legislature's listing of only two types of "battery" under section 776.08, Florida Statutes (2006))....

...murder. Young, 579 So.2d at 724. We have held that "self-defense is legally unavailable to a person who `[i]s attempting to commit, committing, or escaping from the commission of a forcible felony.'" Marshall v. State, 604 So.2d 799, 803 (Fla.1992). Section 776.08, Florida Statutes (1985), specifically defines "forcible felony" as including both burglary and aggravated battery....

...Hearns When the postconviction court summarily denied Walker's rule 3.800(a) motion, it did not have the benefit of State v. Hearns, 961 So.2d 211 (Fla.2007). In Hearns, the Supreme Court of Florida considered whether battery on a law enforcement officer is a "`forcible felony, as described in' section 776.08, Florida Statutes (2000)," for purposes of the violent career criminal (VCC) statute. Id. at 214; see § 775.084(1)(d). Because battery on a law enforcement officer is not specifically enumerated as a "forcible felony" in section *1283 776.08, the Hearns court analyzed the catchall provision that defines a "forcible felony" as including "any other felony which involves the use or threat of physical force or violence against any individual." § 776.08, Fla....

...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. Perkins, 576 So.2d at 1313 (emphasis added). Therefore, Perkins held that for an offense to be a forcible felony under section 776.08, the "use or threat of physical force or violence" must be a necessary element of the crime....

...create a fear of great bodily harm." The Court concluded that the defendant was not justified in shooting the youth, by means of a trap gun, in order to prevent him from committing burglary. Although a "forcible felony" includes burglary in Florida (section 776.08, Florida Statutes), we must agree with the observation made by the California Court in Ceballos, which was: A defendant is not protected from liability merely by the fact that the intruder's conduct is such as would justify the defenda...

...or violence within three years of being released from a state correctional facility); id. § 775.084(1)(d)(1)(a) (defining the term “violent career criminal” to include a defendant who has been convicted three times of any forcible felony); id. § 776.08 (defining “forcible felony” to encompass a felony that “involves the use or threat of physical force or violence”)....

...In Hearns , we held that a conviction for BOLEO did not qualify a defendant for sentencing as a violent career criminal (VCC). 961 So.2d at 219 . The VCC statute contains a list of enumerated qualifying offenses, as well as a provision incorporating “[a]ny forcible felony, as described in s. 776.08.” § 775.084(1)(d)1.a, Fla. Stat. (2000). Section 776.08 enumerates several forcible felonies and also includes a catch-all provision covering “any other felony which involves the use or threat of physical force or violence against any individual.” § 776.08, Fla. Stat. (2000). Applying the “statutory elements” test set forth in Perkins v. State, 576 So.2d 1310 (Fla.1991), we reasoned that for an offense to be a forcible felony under section 776.08, the “use or threat of physical force or violence” must be a necessary element of the crime....

...Hearns, 961 So.2d at 215 (quoting Perkins, 576 So.2d at 1313 ). We concluded that because BOLEO can be committed by merely intentionally touching a law enforcement officer against his will, it is not a forcible felony “as described in the final clause of section 776.08” and therefore not a qualifying offense under the VCC statute....

...n the excessive use of force, were not probative of Officer Winters' conduct in the current instance. [10] As previously noted, Holland was convicted of first-degree murder, armed robbery, attempted sexual battery, and attempted first-degree murder. Section 776.08, Florida Statutes (1989), specifically defines "forcible felony" to include both robbery and sexual battery....

...trial court to give the requested instruction. BARFIELD, C.J.; and ALLEN, J., concur. NOTES [1] A statute defines "forcible felony" to include "any other felony which involves the use or threat of physical force or violence against any individual." § 776.08, Fla.Stat....

...ng sections of this chapter is not available to a person who: *991 (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony[.] While the charged offense of aggravated battery is indeed a "forcible felony" under section 776.08, Florida Statutes, this court noted in Giles that "the plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self defense is engaged in another, independent `forcible felony' at the time." Id....

...o the use of deadly force and he was entitled to an instruction concerning the use of nondeadly force. The appellant's conduct in waving the firearm resulted in him being charged with aggravated assault while armed with a firearm, a forcible felony. § 776.08, Fla.Stat....

...a violent career criminal as provided by section 775.084, Florida Statutes (2001). We reverse, and remand for resentencing. Johnson's current (battery) offense, spitting on a law enforcement officer, is not one of the forcible felonies enumerated in section 776.08 and does not amount to "the use or threat of use of physical force or violence" as provided by that section....

...ifies and at least three of the defendant's prior felonies also qualify. The charged offense, throwing a deadly missile, is not one of the specified offenses. Thus, to qualify under the statute, this offense must be a "forcible felony" as defined in section 776.08, Florida Statutes (1997). To qualify under section 776.08 as a forcible felony, the crime must involve "the use or threat of physical force or violence against any individual." Before the United States Supreme Court decision in Apprendi v....

...I agree with reversal on the separate ground that, no matter what the underlying facts or jury finding, and thus without considering Apprendi, the crime proscribed by section 790.19, Florida Statutes (1997), [2] is not a forcible felony as defined *629 by section 776.08, Florida Statutes (1997), [3] because it includes shooting or throwing at unoccupied buildings, and thus does not, by statutory definition, necessarily involve physical force or violence against an individual....

...tance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied ... shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [3] 776.08 Forcible felony.—"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unl...

...pose imprisonment pursuant to paragraph (4)(c), if it finds that: 1. The defendant has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that is: a. Any forcible felony, as described in s. 776.08.......

...ry of an unoccupied structure. He contends that these offenses do not qualify him as a violent career criminal. The violent career criminal statute provides, in pertinent part, that qualifying offenses include "[a]ny forcible felony, as described in s.776.08." § 775.084(1)(c)1.a., Fla. Stat. (Supp.1998). Section 776.08, Florida Statutes (1997), provides: 776.08 Forcible felony.—"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unl...

...vice or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. (Emphasis added). Because burglary is an enumerated forcible felony, it follows that the defendant qualifies under the statute. Section 776.08 does not distinguish between burglary of an occupied or unoccupied structure or conveyance. See State v. Emmund, 698 So.2d 1318, 1319 & n. 2. (Fla. 3d DCA 1997). The defendant points out that the final portion of section 776.08 refers to "any other felony which involves the use or threat of physical force or violence against any individual." He contends that the phrase "involves the use or threat of physical force or violence against any individual" must be read as a limitation on all of the crimes listed in the forcible felony statute....

...erse and remand for a new trial. Reversed and remanded. SILBERMAN and CANADY, JJ., Concur. NOTES [1] See State v. Ware, 253 So.2d 145 (Fla. 2d DCA 1971); State v. Altman, 432 So.2d 159 (Fla. 3d DCA 1983). [2] Aggravated assault is a forcible felony. § 776.08, Fla....

...elony that is to be counted as a prior felony. (3) This section shall not apply to a person whose civil rights and firearm authority have been restored. [2] The definition of "violent career criminal" includes "[a]ny forcible felony, as described in s. 776.08 ...." § 775.084(1)(c), Fla. Stat. (1995). Under section 776.08, "forcible felony" includes burglary....

...State, 749 So.2d 556, 556 (Fla. 2d DCA 2000)). See Rawlings, 976 So.2d at 1181-82; Green, 973 So.2d at 1253. Affirmed. WOLF and BROWNING, JJ., concur. NOTES [*] The violent career criminal statute the Hearns court construed applies to any offense defined as a forcible felony by section 776.08. See State v. Hearns, 961 So.2d 211, 216-17 (Fla. 2007). Section 776.08, Florida Statutes (2006), provides: "Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stal...

...or violence against an individual." § 775.082(9)(a)1. o., Fla. Stat. (2003). In construing identical language found in the definition of "forcible felony" used for purposes of imposing a violent career criminal designation, see §§ 775.084(1)(d), 776.08, Fla....

...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. Perkins, 576 So.2d at 1313 (emphasis added). Therefore, Perkins held that for an offense to be a forcible felony under section 776.08, the "use or threat of physical force or violence" must be a necessary element of the crime....

...The state argues first that the trial court correctly gave the forcible felony exception portion of the instruction on self-defense because appellant was, in fact, charged with two forcible felonies, contending that carrying a concealed firearm is also a forcible felony. The term "forcible felony" is defined by statute. Section 776.08, Florida Statutes (2002), reads: "Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalkin...

...] is the statutory elements of the offense. If `the use or *1216 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....

...t available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony[.] § 776.041(1), Fla. Stat. (2009). Although a "forcible felony," as used in this chapter, includes aggravated battery, see section 776.08, Florida Statutes (2002) and (2009), "the plain language of section 776.041 show[s] that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent `forcible felony' at the time." Giles v....

...ry of an unoccupied structure. He contends that these offenses do not qualify him as a violent career criminal. The violent career criminal statute provides, in pertinent part, that qualifying offenses include "[a]ny forcible felony, as described in s. 776.08." § 775.084(1)(c)1.a., Fla. Stat. (Supp. 1998). Section 776.08, Florida Statutes (1997), provides: 776.08 Forcible felony....

...vice or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. (Emphasis added). Because burglary is an enumerated forcible felony, it follows that the defendant qualifies under the statute. Section 776.08 does not distinguish between burglary of an occupied or unoccupied structure or conveyance. See State v. Emmund, 698 So.2d 1318, 1319 & n. 2. (Fla. 3d DCA 1997). The defendant points out that the final portion of section 776.08 refers to "any other felony which involves the use or threat of physical force or violence against any individual." He contends that the phrase "involves the use or threat of physical force or violence against any individual" must be read as a limitation on all of the crimes listed in the forcible felony statute....

...(1997) (listing the primary and predicate qualifying offenses as aggravated stalking, aggravated child abuse, aggravated abuse of an elderly person; lewd, lascivious, or indecent conduct; escape; felony violation of chapter 790 involving use or possession of a firearm; and a forcible felony under section 776.08); § 776.08, Fla....

...The reasoning of these cases apparently served as the basis for concluding that BOLEO was a "forcible felony" and thus a qualifying offense for VCC sentencing. See § 775.084(1)(d)(1)(a), Fla. Stat. (1999) (listing "any forcible felony, as described in s. 776.08" as a qualifying offense for VCC sentencing)....

...The supreme court disapproved this court's opinions in Brown and Crenshaw and similar opinions from other district courts explaining that they conflicted with Perkins v. State, 576 So.2d 1310 (Fla. 1991). Perkins held that to constitute a "forcible felony" under section 776.08, the statutory elements of the felony must include the use or threat of physical force or violence against any individual....

...Therefore, there can be no inadequate-training liability on the part of the City, and it is entitled to summary judgment on that count. The complaint also charges the City with wrongful death, under Fla. Stat. § 768.28. The City argues that this claim is defeated by application of Fla. Stat. § 776.085, which states: (1) It shall be a defense to any action for damages for ....

...The defense authorized by this section shall be established . . . by proof of the commission of such crime or attempted crime by a preponderance of the evidence. (2) For the purposes of this section, the term "forcible felony' shall have the same meaning as in s. 776.08. Id. The cross-referenced section, in turn, provides that "`[f]orcible felony' means . . . any . . . felony which involves the use or threat of physical force or violence against any individual." Id. § 776.08....

...§ 784.03. [8] Under Florida law, a battery committed against a law enforcement officer in this manner is a third-degree felony, see id. § 784.07(2)(b), [9] *1382 and in this case obviously involved "the use . . . of physical force or violence . . . ." Id. § 776.08....

...es in the forcible felony statute, it is not one of the specific offenses for which a defendant can be made to suffer the enhanced punishments of a PRR." Id. at 378. While this court made reference to the definition of "forcible felony" contained in section 776.08, Florida Statutes, we did so because the "forcible felony" statute contains a similar catch-all provision to the PRR statute. We did not find, as the trial court concluded, that the PRR act applies to all "forcible felonies" as set out in section *154 776.08. Such a reading is illogical and would lead to absurd results. Section 776.08 lists "burglary" as a forcible felony....

...If the legislature intended to include all burglaries for PRR sentencing, then it would have been unnecessary to state any particular form of burglary. Clearly, the legislature did not intend the PRR statute to reach all the "forcible felonies" defined in 776.08....

...Applying the rule of lenity, as we must, Rodriguez v. State, 773 So.2d 1222 (Fla. 3d DCA 2000), review denied, 817 So.2d 850 (Fla.2002), and the maxim of noscitur a sociis, as we should, see Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927), I believe that because all of the crimes listed in section 776.08 [1] are of a violent nature, and its last sentence refers to "any other [e.s.] felony which involves the use or threat of force against any individual," the burglary referred to must be restricted to one involving violence. On that basis, I would reverse the violent career criminal sentence imposed on the defendant. NOTES [1] Section 776.08, Florida Statutes (1997), provides: 776.08 Forcible felony.—"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unl...

...(2008) (providing that use of deadly force is justified where an individual "reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony"); § 776.08, Fla....

...imminent death or great bodily harm to [himself] [herself] or another, or *643 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another. Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in § 776.08, Fla....

...(Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla....

...g deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony. Define applicable forcible felony from list in § 776.08, Fla....

...ing. While felony battery is not one of the enumerated felonies listed in the statute, a "catch-all" provision adds "[a]ny felony that involves the use or threat of physical force or violence against an individual." [1] Identical language is used in section 776.08 to define a "forcible felony." Therefore, whether the PRR statute applies to felony battery depends on whether felony battery is within the meaning of "forcible felony." In State v....

...A child shooting a spitball at a school police officer would be guilty of a forcible felony. The possibilities are limited only by the imagination. But such minor infractions are incompatible with the level of force the forcible felony statute contemplates. The felonies enumerated in section 776.08 include murder, treason, carjacking, home-invasion robbery, arson, kidnapping, discharging of a destructive device or bomb, and aircraft piracy....

...Mielke, Assistant Attorney General, for appellee. Before COPE, GREEN and RAMIREZ, JJ. On Rehearing Denied COPE, J. After careful consideration of the motion for rehearing, we adhere to our original opinion in the case. The Florida Supreme Court has already decided how to interpret section 776.08, Florida Statutes. The court has said that *1178 "a `forcible felony' includes burglary in Florida (Section 776.08, Florida Statutes)...." Falco v....

...ry of an unoccupied conveyance. The defendant reasons that such an eventuality is possible because the statute on justifiable use of force allows deadly force to be employed, in some circumstances, to prevent the commission of a forcible felony. See § 776.08, Fla....

...ent the forcible felony of burglary. As the Falco decision demonstrates, the use of such force cannot be reasonably necessary where the structure is unoccupied. Thus, the Falco decision establishes that burglary is a forcible felony as enumerated in section 776.08, Florida Statutes. Whether deadly force is permissible to defend against a forcible felony depends on the wording of the use of force statute (§ 776.012), not the forcible felony definition (§ 776.08). Finally, we note in passing that the decision in Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991), also mandates rejection of the defendant's argument. The final clause of section 776.08 states that a forcible felony includes "any other felony which involves the use or threat of physical force or violence against any individual." The defendant argues that this phrase modifies the entire list of forcible felonies so that a listed felony is not "forcible" unless it involved the use or threat of physical force or violence against any individual. The Perkins decision takes a different view. Under Perkins, the final clause of section 776.08 is interpreted by looking at the statutory elements of non-enumerated crimes....

...State, 898 So.2d 120 (Fla. 4th DCA 2005). After careful review of the record, we find the State has failed to introduce evidence of the requisite prior convictions. The convictions relied on in the sentencing hearing do not constitute convictions for felonies listed under section 776.08, Florida Statutes....

...re] [conveyance]. c. with the intent to commit or attempt to commit a [forcible felony] [ (the forcible felony alleged) ] inside the [structure] [conveyance]. *725 The offense intended, cannot be trespass or burglary. Forcible felonies are listed in § 776.08 Fla....

...mpted trafficking in cocaine charges were improperly reclassified under section 775.087(1) and Campbell must be resentenced on these convictions. [5] Fourth, Campbell argues that because conspiracy and attempt are not forcible felonies as defined by section 776.08 of the Florida Statutes, he could not be sentenced as a violent career criminal under section 775.084(1)(d)(1)....

...pose imprisonment pursuant to paragraph (4)(d), if it finds that: 1. The defendant has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that is: a. Any forcible felony, as described in s. 776.08; b....

...f. Escape .. . g. A felony violation of chapter 790 involving the use or possession of a firearm. Conspiracy and attempt obviously are not enumerated qualifying offenses under this provision. Nor are they "forcible felonies" *619 expressly listed in section 776.08. [6] They also do not fall within section 776.08's "other felony which involves the use or threat of physical force or violence against any individual" rubric....

...sault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual." § 776.08, Fla....

...Stat. (1987), a self-defense claim is not available to a person who "[i]s attempting to commit ... a forcible felony," the defendants contend that a claim of self-defense is not foreclosed to them since cocaine trafficking is not a forcible felony. Section 776.08, Fla....

...cy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. (emphasis added). While it is true, as defendants claim, that section 776.08 does not specifically list drug trafficking as a forcible felony in the way that section 782.04 lists trafficking as an underlying felony upon which a first-degree murder charge can be based, the crime of drug trafficking is clearly embraced within the scope of the definition of forcible felony since the crime is the sort of felony which involves "the use or threat of physical force or violence against an[] individual" as set forth in section 776.08....

...e a charge of felony murder. The clear implication of that change was to place drug trafficking within the definition of forcible felony, i.e., "any other felony which involves the use or threat of physical force or violence against any individual." § 776.08.

...with the intent to commit or attempt to commit a [forcible felony] [ (the forcible felony alleged) ] inside the [structure] [conveyance]. Define the crime or forcible felony alleged. The offense intended cannot be trespass or burglary. Forcible felonies are listed in § 776.08 Fla....

...Crist, Jr., Attorney General, and Andrea D. England (Ft.Lauderdale), Assistant Attorney General, for Appellee. Before SCHWARTZ, C.J., and GODERICH, J., and NESBITT, Senior Judge. PER CURIAM. At the outset we reject the appellant's argument that the "burglary" enumerated in Section 776.08, Florida Statutes (2000), does not qualify as a "forcible felony" and therefore, it does qualify the appellant for sentencing under Section 775.084(1)(d), Florida Statutes (2000)....

...ttery on a law enforcement officer. As this court has previously determined, in order to qualify as a "forcible felony" under the statute the offense must be one that involves the "use or threat of physical force or violence against any individual." § 776.08, Fla....

...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." Perkins v....

...(c) `Violent career criminal' means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(c), if it finds that: 1. The defendant has previously been convicted as an adult three or more time for an offense in this state or other qualified offense that is: a. Any forcible felony, as described in s. 776.08; b....

...g and eluding) and count seven (grand theft) are illegal. These offenses are not enumerated by the VCC statute. See § 775.084(l)(d), Fla. Stat. (2002) (enumerating qualifying and predicate offenses, including “any forcible felony, as described in s. 776.08”). Nor are these offenses enumerated as a forcible felony. See § 776.08, Fla....

...Hearns, 961 So.2d 211, 216 (Fla.2007), and Perkins v. State, 576 So.2d 1310 . (Fla.1991), we conclude that the aggravated fleeing and eluding conviction does not fall within the “catchall” provision of the final clause of the statute defining a forcible felony. Section 776.08, Florida Statutes, defines a “forcible felony” as follows: “Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggr...

...Hearns, 961 So.2d at 216 (quoting Perkins, 576 So.2d at 1313 ) “If ‘the use or threat of physical force or violence against any indi *558 vidual’ 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.’ ”)....

...nce against an individual." § 775.082(9)(a)(1)( o ). In State v. Hearns, 961 So.2d 211, 212 (Fla.2007), the Supreme Court of Florida considered whether the offense of battery on a law enforcement officer could qualify as a forcible felony [1] under section 776.08, Florida Statutes (2000), for the purpose of imposing a sentence enhancement under the violent career criminal (VCC) statute, section 775.084(1)(d)....

...Lamb shall have the right to be present at resentencing. Judgments affirmed, sentences affirmed in part and reversed in part, and case remanded for resentencing in accordance with this opinion. CASANUEVA, C.J., and NORTHCUTT, J., concur. NOTES [1] For the purpose of section 776.08, "[f]orcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. § 776.08....

...imminent death or great bodily harm to [himself] [herself] or another, or 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another. Insert and define applicable forcible felony that defendant alleges victim attempted to commit. Forcible felonies are listed in § 776.08, Fla....

...for a gun to murder him. The erroneous instruction did not deprive Odeh of the opportunity to present his defense: self-defense to avoid being killed by a gun. In instructing the jury on the justifiable use of deadly force under sections 776.012 and 776.081, the first alternative the judge instructed on was the use of deadly force “necessary to prevent imminent death or great bodily harm to himself or another.” That portion of the instruction would have allowed Odeh to argue he was justified...

...rdict based on self-defense. In regard to this issue, both prongs of the Strickland test have been met. Thus, we must reverse the trial court's order and remand for a new trial. Reversed and remanded. ALTENBERND and NORTHCUTT, JJ., Concur. NOTES [1] Section 776.08, Florida Statutes (1993), defines forcible felony as follows: "Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravate...

...injury, commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The 1995 Legislature added aggravated stalking to the list of enumerated forcible felonies recited in section 776.08. We presume that Adams' contention that aggravated stalking was a forcible felony in 1993 (the year of the offense) for the purpose of section 776.012 is under the catch-all "other felony" language of section 776.08 as it existed in 1993.

...for reh'g), the trial court sentenced Hudson as a violent career criminal to 40 years in prison with a 30-year mandatory minimum, pursuant to section 775.084(1)(c)(1)(a), Florida Statutes (Supp. 1998), which authorizes enhancement if a *1018 defendant is convicted of committing a forcible felony, as defined in section 776.08, Florida Statutes, which includes any felony involving "the use or threat of physical force or violence against any individual," identical to the catch-all PRR provision at issue herein....

...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....

...(1)(d)(1)(a), Florida Statutes (2001), because even though spitting is an unwanted touching, and thus a battery under section 784.03(1)(a)(1), spitting is not a forcible felony involving "the use or threat of use of physical force or violence" under section 776.08).

...e issuance of our mandate. Thus, the mandate issued on November 2, 2005. On discretionary review in the Florida Supreme Court, the court approved the result in this Court because a battery on a law enforcement officer was not a forcible felony under section 776.08, Florida Statutes (2000), and should not have been counted as a qualifying offense for violent career criminal sentence enhancement....

...s a result of a prior conviction for an enumerated felony, whichever is later. There is no doubt that Walters had been previously convicted of three of the enumerated felonies. Among the enumerated felonies is "[a]ny forcible felony, as described in s. 776.08." The latter statute defines forcible felony as follows: "Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery;...

...ony" and met the additional requirement that the offense be committed on or after October 1, 1995. However, the attempted robbery committed by Walters in 1990 (for which he was released in 1999) must also qualify as a forcible felony as described in section 776.08 in order for Walters to be sentenced as a violent career criminal....

...for an enumerated felony"; thus, the attempted robbery (for which he was imprisoned until 1999) has to qualify as an enumerated felony. There is no case which directly considers whether an "attempted robbery" is a forcible felony within the meaning of section 776.08....

...of the RAI and how these felonies are differentiated from *972 the “all other second degree felonies” that score 8 points. We do not agree with defense counsel that enumerated offenses in recidivist statutes or the definition of “forcible felony” in section 776.08, Florida Statutes, apply or should apply to the RAI and the decision of whether to hold a child in secure detention....

...dale), for appellee. Before COPE, SHEVIN, and WELLS, JJ. PER CURIAM. Juan Cala challenges his sentence as a violent career criminal arguing that the non-violent burglaries on which his sentence was based are not qualifying offenses as "described" in section 776.08 of the Florida Statutes. See § 775.084(1)(d), Fla. Stat. (2003) (defining a violent career criminal as a defendant who has previously been convicted as an adult three or more times for an offense that is a "forcible felony, as described in s. 776.08"). According to Cala, section 776.08 enumerates those crimes that may qualify as predicate forcible felonies if and only if they involve the use or threat of physical force or violence. We disagree. Section 776.08 defines the term forcible felony to mean those crimes expressly enumerated, irrespective of the use or threat of physical force or violence, as well as those crimes not enumerated which involve the use or threat of physical force or vi...

...ssault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. § 776.08, Fla. Stat. (2003) (emphasis added). As we explained in Rodriguez v. State, 837 So.2d 1177, 1178-79 (Fla. 3d DCA 2003), the final clause of section 776.08 looks to the statutory elements of crimes not enumerated, not to the elements of those crimes expressly listed....

...Hearns involved the imposition of a violent career criminal sentence (VCC). Under the relevant statutes, a VCC sentence is possible provided a defendant is thrice convicted of certain enumerated felonies or "`[a]ny forcible felony, as described in s. 776.08.'" Id. at 214 (quoting section 775.084(1)(d)1., Fla. Stat.). Section 776.08 defines "forcible felony" to include certain enumerated offenses and "any other felony which involves the use or threat of physical force or violence against any individual." The supreme court held that in determining whether Hearns' c...

...09-63, § 1, Laws of Florida. The new subsection (10) provides: If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in [section] 776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence points pursuant to [section] 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction....

...within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor. § 775.082, Fla. Stat. (1997). This court has held that the interpretation of this language must follow that of the catch-all provision included within the definition of “forcible felony” in section 776.08, Florida Statutes, because the language of the two provisions is substantively identical. Walker v. State, 965 So.2d 1281, 1282-88 (Fla. 2d DCA 2007). As the Florida Supreme Court has explained, “in the strict and literal sense required by Florida law, th[e] language [of the catch-all provision of section 776.08] 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.” State v....

...case the evidence showed that force or violence had been used. Thus, because battery can be committed by simple touching as well as by striking or intentionally causing bodily harm, 1 battery is not a forcible felony under the catch-all provision of section 776.08 even where the record shows that the defendant committed the battery in the form of striking or effecting bodily harm....

...that is imposed as a result of a prior conviction for an enumerated felony, whichever is later." § 775.084(1)(d)3.b., Fla. Stat. (2008) (emphasis added). An "enumerated felony" is any one of those crimes identified in section 775.084(1)(d)1., including "[a]ny forcible felony, as described in s. 776.08." § 775.084(1)(d)1.a., Fla. Stat. (2008). Section 776.08 defines a "forcible felony" as, among other things, "home-invasion robbery; robbery; ... and any other felony which involves the use or threat of physical force or violence against any individual." § 776.08, Fla....

...section 775.084(1)(d)3.b. for four reasons. First, *991 "robbery by sudden snatching" is not any of those crimes identified in section 775.084(1)(d)1.b.-g. Second, robbery by sudden snatching is not expressly identified as a "forcible felony" under section 776.08. Third, "robbery by sudden snatching" cannot be considered as an implied "forcible felony" under section 776.08 because, if the legislature intended to include all forms of robbery under that statute, then it would have been unnecessary for the legislature to have particularly listed "home-invasion robbery" and "robbery" under section 776.08....

...n unnecessary to state any particular form of burglary."). Fourth, we previously have found that "robbery by sudden snatching" does not qualify as a "felony which involves the use or threat of physical force or violence against any individual" under section 776.08....

...3d at 175 n.4)). Section 775.082(10) reads: If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s....

...t two subclasses of offenders who cannot qualify for a less severe "nonstate prison sanction," despite otherwise meeting the three aforementioned conditions. The first subclass consists of offenders convicted of "forcible felonies," as defined in section 776.08, Florida Statutes (2011). Section 776.08 lists as "forcible felonies" treason, murder, manslaughter, sexual battery, arson, burglary, aggravated battery, aggravated assault, carjacking, aggravated stalking, and aggravated assault, to name several. Section 776.08 then provides a catchall "forcible felony" provision to include "any other felony which involves the use or threat of physical force or violence against any individual." The second subclass of felony offenders precluded from receivi...

...If the legislature intended for section 775.082(10) to function in such a manner, it would have specifically excluded animal baiting from its presumption of nonstate prison sentencing, just as it specifically excluded forcible felonies defined in section 776.08 and third-degree felonies under chapter 810....

...on for battery on a law enforcement officer (BOLEO) is illegal because BOLEO is not a "forcible felony" that qualifies for VCC sentencing. See § 775.084(1)(d)(1)(a), Fla. Stat. (2001) (stating that a "forcible felony" is subject to VCC sentencing); § 776.08, Fla....

...(2001) (defining the offense of battery on a law enforcement officer). The postconviction court erroneously denied the claim, finding that Cribbs' offense qualified because there was evidence he used violence in its commission. For an offense not specifically enumerated in section 776.08, the Florida Supreme Court has held that the use or threat of physical violence must be an essential element of the offense if it is to be considered a "forcible felony." State v. Hearns, 961 So.2d 211, 215 (Fla.2007) (citing Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991)). The supreme court has also decided that "BOLEO is not a forcible felony under section 776.08 and should not [be] counted as a qualifying offense for VCC sentence enhancement" because one may commit the offense without the use or threat of violence....

...Julio Curi appeals from an order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. Because burglary of an unoccupied dwelling is a "forcible felony," for which defendant could be sentenced as a violent career criminal, we affirm. § 775.084(1)(d)(a), Fla. Stat. (2003); § 776.08, Fla....

...ult in harm either way. Rodriguez argues the burglary was not a serious emergency, but rather a property crime out of which the officers created an emergency by ignoring police policies and procedures. We disagree. Burglary is a forcible felony, see § 776.08, Fla....

...o . . . [i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." See, e.g., Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). Both crimes with which appellant was charged qualify as a "forcible felony." § 776.08, Fla....

...that the effect is not unconstitutional. We, therefore, affirm Bynes’ conviction and sentence as a violent career criminal. Any defendant who has previously been convicted as an adult three or more times for a forcible felony as de *291 scribed in section 776.08 1 must be sentenced as a violent career criminal. § 775.084(l)(d), Fla. Stat. (2001). Under section 776.08, a “forcible felony” consists of: treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. § 776.08, Fla....

...deadly force if [he] [she] reasonably believesd that such [force] [or] [threat of force] iswas necessary to prevent [imminent death or great bodily harm to [himself] [herself] [or] [another] [or] [the imminent commission of (applicable forcible felony listed in § 776.08, Fla....

...Insert and defineGive the elements of the applicable forcible felony that defendant alleges victim was about to commit, but omit any reference to burden of proof. See Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011). Forcible felonies are listed in § 776.08, Fla....

...(Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1and 2 are given. Forcible felonies are listed in § 776.08, Fla....

...force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony. Define applicable forcible felony from list in § 776.08, Fla....

...Stat. Give if applicable. However, the [use] [or] [threatened use] of deadly force is not justified if you find that (defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony listed in § 776.08, Fla....

...Give if applicable. However, the [use] [or] [threatened use] of non-deadly force is not justified if you find that (defendant) was attempting to commit, committing, or escaping after the commission of a[n] (applicable forcible felony listed in § 776.08, Fla....

...4th DCA 2005). Section 775.082(10) sets forth the following rule regarding sentencing for offenders scoring less than 22 points: If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s....

...However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section. The list of “forcible felonies” in section 776.08, Florida Statutes (2010), does not specifically include battery....

...battery. Id. At issue is whether felony battery constitutes a forcible felony within the meaning of the statute. The supreme court addressed what was a 2 forcible felony under an identical catch-all provision in section 776.08 in State v....

...2d 211, 213-14 (Fla. 2007). In Hearns, the defendant was convicted of battery on a law enforcement officer (“BOLEO”). The state sought an enhanced sentence under the violent career criminal statute, which requires conviction of a forcible felony as defined by section 776.08, which “does not specifically list BOLEO, or even battery, as a qualifying offense.” Id. at 214. Citing Perkins v. State, 576 So. 2d 1310 (Fla. 1991), the Hearns court held that “for an offense to be a forcible felony under section 776.08, the ‘use or threat of physical force or violence’ must be a necessary element of the crime.” Id. at 215. “If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony.” Id. See also Perkins, 576 So. 2d at 1313 (quoting § 776.08, Fla....

...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.'")....

...State, 928 So.2d 368 (Fla. 3d DCA 2006), review denied, 952 So.2d 1191 (Fla.2007). It is for this reason that the forcible felony instruction only applies in situations where the defendant is charged with a separate independent forcible felony as defined by section 776.08, Florida Statutes (2006)....

...ll under the statutorily enumerated categories of offenses for which drug offender probation could be imposed." We disagree. See State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007) ("[Battery on a law enforcement officer] is not a forcible felony under section 776.08."); § 948.20(1), Fla. Stat. (2015) ("[T]he term 'nonviolent felony' means a third degree felony violation under chapter 810 or any other felony offense that is not a forcible felony as defined in s. 776.08."). 2 The trial court had before it, among other evidence, the testimony of two law enforcement officers establishing their familiarity with Powell due to numerous encounters with him over several years....

...or to prevent the imminent commission of a forcible felony .... Exceptionally, however, the justification "is not available to a person who . . . is attempting to commit, committing, or escaping after the commission of, a forcible felony." § 776.041(1). Burglary is a forcible felony. § 776.08. Cook further relies on a case in which this court held that the forcible- felony exception applies "only when 'the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.' " Santiago v....

...However, an exception to the waiver exists when the defendant can demonstrate that the predicate offenses do not exist. Lee v. State, 731 So.2d 71, 73 (Fla. 2d DCA 1999); Hearns v. State, 912 So.2d 377, 379 (Fla. 3d DCA 2005). .Burglary is a forcible felony. § 776.08, Fla....

...eer criminal. A “violent career criminal” is a “defendant [who] has previously been convicted as an adult three or more times for [a qualifying] offense.” § 775.084(l)(d)(l)(a), Fla. Stat. (2009). Burglary qualifies as such an offense. Id.; § 776.08, Fla....

...use it is neither a qualifying nor an enumerated offense, relying on State v. Hearns, 961 So.2d 211 (Fla.2007), and its progeny. The issue in Hearns was whether battery on a law enforcement officer qualified as a “forcible felony,” as defined in section 776.08, Florida Statutes (2000), for purposes of the violent career criminal (VCC) statute, section 775.084(l)(d), Florida Statutes. Just as false imprisonment is not one of the enumerated felonies under section 775.082(9)(a)l., battery of a law enforcement officer is not specifically enumerated as a “forcible felony” in section 776.08....

...with the intent to commit or attempt to commit a [forcible felony] [(the forcible felony alleged)] inside the [structure] [conveyance]. The offense intended cannot be trespass or burglary. Forcible felonies are listed in § 776.08 Fla....

commission of a forcible felony, as listed in section 776.08, Florida Statutes (2018), the Court has added

...Robert Dresch (“Defendant”) appeals from his conviction and sentence on the charge of corruption by threat. He was sentenced to five years in prison. The State agrees with Defendant that the crime of corruption by threat is not a forcible felony within the meaning of section 776.08, Fla. Stat. (2013),1 because the “offense may be committed without the use or threat of physical force.” State v. Hearns, 961 So. 2d 211, 215 (Fla. 2007). Since the crime of corruption by threat is not a forcible felony within the 1 Section 776.08, Fla....

...aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. meaning of section 776.08, and because Defendant scored less than 22 points on his scoresheet, the trial court was required to make written findings that a nonstate prison sanction would impose a danger to the public before sentencing Defendant to a state correctional facility....

...for rehearing. 2 Section 775.082(10), Fla. Stat. (2013), provides: If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s....

...2.051(1), Florida Statutes (1997), asserting that the offense was not an enumerated felony for which VCC sentencing could be imposed. The motion was denied based on a state response which argued that the offense was a forcible felony as described in section 776.08....

...encing 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.'" Id....

...t to protect the officer or others from imminent death or bodily harm; or while in fresh pursuit, apprehending, or attempting to apprehend a suspect reasonably believed to have perpetrated, or attempted to perpetrate, a forcible felony as defined in section 776.08, or the offense of escape....

...must impose imprisonment pursuant to paragraph (4)(d), if it finds that: 1. The defendant has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that is: a. Any forcible felony, as described in s. 776.08; .... 3. The primary felony offense for which the defendant is to be sentenced is a felony enumerated in subparagraph 1. . . . § 775.084(1)(d)1.a., (1)(d)3., Fla. Stat. (2022) (emphasis added). In turn, section 776.08, Florida Statutes, provides in full: “Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated...

...battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. § 776.08, Fla. Stat. (2022) (emphasis added). “Section 776.08 enumerates several forcible felonies and also includes a catch-all provision covering ‘any other felony which involves the use or threat of physical force or violence against any individual.’” State v. Hackley, 95 So. 3d 92, 95 (Fla. 2012) (quoting § 776.08, Fla....

...2d 211 (Fla. 2007), the Florida Supreme Court reviewed and applied the test articulated in Perkins v. State, 576 So. 2d 1310 (Fla. 1991), for determining whether a criminal offense is a forcible felony that falls within the meaning of the catch-all provision of section 776.08....

...statutory elements of the offense”; and that “[i]f 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.” Hearns, 961 So....

...tute, and he does not assert otherwise on appeal. So the only question remaining is whether his two convictions for attempted manslaughter by act are qualifying offenses pursuant to section 775.084(1)(d)1.a., (1)(d)3. of the VCC statute by way of section 776.08’s forcible felony catch-all provision. They are for two reasons. First, attempted manslaughter by act is a forcible felony under section 776.08’s catch-all provision because the use of physical force or violence against an individual is “a necessary element of the crime” of attempted manslaughter by act....

...ence against the victim. Otherwise, the defendant’s overt act could not result in the victim’s death and no conviction for attempted manslaughter by act could occur. Stated differently, attempted manslaughter by act is a forcible felony under section 776.08’s catch-all provision because it cannot be committed “without [involving] the use ....

...ached the stage of the offense of actually applying or attempting to apply physical force or violence against a victim, as it may 6  And second, attempted manslaughter by act is a forcible felony under section 776.08’s catch-all provision because attempted manslaughter by act involves a level of physical force or violence “comparable” to that of an enumerated forcible felony—i.e., manslaughter. See Hearns, 961 So. 2d at 219; see also § 776.08, Fla. Stat....

...manslaughter by act may or may not have successfully accomplished manslaughter if the defendant’s conduct had been carried to ultimate fruition. Nevertheless, we believe attempted manslaughter by act necessarily “involves” physical force or violence within the meaning of section 776.08’s forcible felony catch-all provision. See § 776.08, Fla....

...metimes’ 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). § 776.08, Fla....

...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.” (quoting Perkins, 576 So....

...motion what can only—but for circumstances independent of the will of the defendant—result in the use of or attempt to use force or violence against an individual. As such, we believe attempted manslaughter by act is a qualifying offense pursuant to the VCC statute by way of section 776.08’s forcible felony catch- all provision. 7 violence against any individual” refers back to the immediately preceding enumerated felonies). Section 776.08 enumerates “manslaughter” as a forcible felony. Manslaughter clearly involves the use of physical force or violence against an individual because it is statutorily defined as an enumerated felony. See § 776.08, Fla....

...Stat. Because “manslaughter” is a statutorily enumerated forcible felony, it follows that “attempted manslaughter by act”—the attempted version of the same offense— constitutes “any other felony which involves the use or threat of physical force or violence against any individual.” § 776.08, Fla....

...er required by Hearns)— Campbell instead analyzed the crime of “attempt” at a high level of generality disconnected from the underlying substantive offense of trafficking in cocaine and broadly held that criminal attempts do not fall within section 776.08’s forcible felony catch-all provision....

...The 2022 versions of the VCC statute and the forcible felony statute at issue in this case have not materially changed since Campbell considered the 2000 versions of the VCC statute and the forcible felony statute. Compare §§ 775.084(1)(d), 776.08, Fla. Stat. (2022), with §§ 775.084(1)(d), 776.08, Fla....

...underlying offense statute to know what the elements are.”). Campbell also failed to acknowledge that some criminal attempt offenses, depending on their statutory elements, may necessarily “involve[] the use . . . of physical force or violence against any individual.” See § 776.08, Fla....

...in Hearns) that “the only relevant consideration is the statutory elements of the offense.” Hearns, 961 So. 2d at 216; see generally Hearns, 961 So. 2d at 212 (addressing whether the offense of battery on a law enforcement officer is a forcible felony pursuant to section 776.08); Perkins, 576 So. 2d at 1311 (addressing whether the offense of attempted trafficking in cocaine is a forcible felony pursuant to section 776.08). Notably, even though Perkins involved the offense of “attempted cocaine trafficking,” id. at 1311, the Perkins court did not hold that criminal attempts per se cannot fall within section 776.08’s forcible felony catch-all provision....

...Instead, the Perkins court analyzed the crime of drug trafficking (the underlying substantive 10 offense of attempted cocaine trafficking), rejected the State’s argument that drug trafficking constituted a forcible felony pursuant to section 776.08, and articulated a statutory elements test for determining whether an offense falls within section 776.08’s forcible felony catch-all provision. See generally Hearns, 961 So. 2d at 215; Perkins, 576 So. 2d at 1313-14. 5 We respectfully disagree with Campbell’s conclusion that a criminal attempt offense can never qualify as a forcible felony pursuant to section 776.08. Instead, we believe that each criminal attempt offense must be analyzed pursuant to the statutory elements test articulated in Perkins and Hearns in order to determine whether the elements of the offense fall within section 776.08’s forcible felony catch-all provision. Applying that test to the criminal attempt offense at issue in this case—i.e., attempted manslaughter by act—we have determined that attempted manslaughter by act indeed falls within section 776.08’s forcible felony catch-all provision. Accordingly, we certify conflict with Campbell. 6 5 We acknowledge that attempted cocaine trafficking does not qualify as a forcible felony pursuant to section 776.08....

...2d at 1311, 1313- 14. 6 We respectfully question our sister court’s interpretation of the VCC statute in Walters v. State, 790 So. 2d 483 (Fla. 5th DCA 2001). There, the Fifth District held that “attempted robbery does not necessarily involve the use or threat of use of force” under section 776.08’s forcible felony catch-all provision, id....

...7 II Appellant argues that the VCC statute is facially unconstitutional. 8 He bases his argument on the Supreme Court’s decision in Erlinger v. United States, 602 U.S. However, because Walters’s holding regarding section 776.08’s catch-all provision applies to the offense of attempted robbery specifically unlike Campbell’s holding regarding section 776.08’s catch-all provision which applies to attempted offenses generally, we need not decide whether we agree with Walters in this case. 7 We have determined in this opinion that attempted manslaughter by act falls within section 776.08’s forcible felony catch-all provision. We leave for another day whether some or all other forms of manslaughter fall within the ambit of section 776.08, either as a statutorily enumerated forcible felony—i.e., manslaughter—or as a forcible felony under section 776.08’s catch-all provision. 8 Facial challenges to the constitutionality of statutes are disfavored and should be infrequent....

...In claim two of his motion, Johnson alleged that his BOLEO conviction is not subject to VCC sentencing because BOLEO is not a "forcible felony." See § 775.084(1)(d)(1)(a), Fla. Stat. (2000) (providing that a "forcible felony" is a qualifying offense); § 776.08, Fla....

... to commit, committing, or escaping after the commission of, a forcible felony." See also § 776.08 (defining forcible felony). 3 felony instruction was erroneously given. See Routenberg v. State, 301 So. 3d 325 (Fla. 2d DCA 2020); Mickens v. ...

of his actions in purported self-defense.[1] Section 776.08, Florida Statutes (1995) defines "forcible

Assault or False Imprisonment) as defined in section 776.08, Fla. Stat. At best, Mr. Dunning’s driving

physical force or violence against any individual.” § 776.08, Fla. Stat. (1991). When appellee committed the

include any forcible felony, as described in section 776.08, or escape. § 775.084(l)(d)(l)(a), (f). At

has repeatedly rejected that argument because section 776.08, Florida Statutes (1999), expressly lists “burglary”

times for a forcible felony as described in section 776.08, has been incarcerated in a state or federal

trespass or burglary. Forcible felonies are listed in § 776.08 Fla. Stat. If requested, the jury should be instructed

forcible felonies described in section 776.08 as qualifying offenses); § 776.08, Fla. Stat. (2005) (listing

"forcible felony" is subject to VCC sentencing); § 776.08, Fla. Stat. (2000, 2001, 2004) (defining "forcible

a. Any forcible felony as defined in Florida Statute §776.08 to include any felony which involves

trespass or burglary. Forcible felonies are listed in § 776.08 Fla. Stat. If requested, the jury should be instructed

felony but not a forcible felony as defined in section] 776.08, and excluding any third degree felony violation

one of the forcible felonies enumerated in section 776.08, Florida Statutes or that it was committed

“Forcible Felony” includes aggravated assault. § 776.08, Fla. Stat. (2014). For the forcible felony exception

commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) against [himself] [herself] [or another]]

commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) against [himself] [herself] [or another]]

Specifically, whether the offense fell within section 776.08’s “catchall” provision defining a forcible

physical force or violence against any individual.” § 776.08, Fla. Stat. The circuit court determined that

had committed a forcible felony as defined in section 776.08, Florida Statutes; and 3) the pursuit was conducted

“forcible felony” to include aggravated battery. § 776.08, Fla. Stat. (2023). Aggravated battery occurs

commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) against [himself] [herself] [or

forcible felonies for purposes of chapter 776. § 776.08.

because BOLEO is not a forcible felony under section 776.08.... ”); Hearns v. State, 912 So.2d 377, 379-80

burglary is a “forcible felony” as defined in section 776.08, Florida Statutes (2000), burglary is a qualified

included in the definition of “forcible felony” in section 776,08, Florida Statutes (2013), because the critical

non-forcible felony, as that term is defined in section 776.08, Florida Statutes. 1 The trial

section. The list of “forcible felonies” in section 776.08, Florida Statutes (2010), does not specifically

the same test applies to either section. See § 776.08, Fla. Stat.; Hearns, 961 So.2d at 217-18; see

felony that is not a forcible felony under section 776.08. Orr’s offense is resisting an officer with

commission of a forcible felony, as listed in section 776.08, Florida Statutes (2018), the Court has added

felony— specifically, aggravated battery. See § 776.08, Fla. Stat. (20Í4) (designáting aggravated battery

commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) against [himself] [herself] [or another]]

offense” such as “[a]ny forcible felony” under section 776.08 or “[a] felony violation of chapter 790 involving

convicted three times of any forcible felony); id. § 776.08

084(1)(d)1.a., Fla. Stat. Looking to the text of section 776.08, Florida Statutes (2021), a forcible felony

aggravated assault and false imprisonment. See § 776.08, Fla. Stat. (defining “forcible felony” to include

physical force or violence against any individual. § 776.08, Fla. Stat. (2004) (emphasis added). Battery on

physical force or violence against any individual. § 776.08, Fla. Stat. (2004) (emphasis added). Battery on

of (applicable forcible felony listed in § 776.08, Fla. Stat.) against himself. If defendant

trespass or burglary. Forcible felonies are listed in § 776.08 Fla. Stat. If requested, the jury should be instructed