final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Waddell A.
Wallace, III, Judge.
Rashad Howard, pro se, Appellant.
Jo Bondi, Attorney General, Tallahassee, for Appellee.
Appellant appeals an order denying two motions to correct
illegal sentence filed pursuant to Florida Rule of Criminal
Procedure 3.800(a). For the reasons discussed below, we
reverse and remand for further proceedings.
April 2009, following an open plea, the Appellant was
convicted of attempted armed robbery, aggravated fleeing or
attempting to elude, aggravated assault, two counts of
aggravated assault on a law enforcement officer, and armed
robbery. He was sentenced as a habitual violent felony
offender (HVFO) to concurrent terms of life in prison for the
armed robbery, 30 years' imprisonment for the attempted
robbery, aggravated assault on a law enforcement officer, and
aggravated feeing counts, and 10 years' imprisonment for
the aggravated assault. In both rule 3.800(a) motions, the
Appellant alleges that the out-of-state conviction used to
designate him as an HVFO does not qualify as a predicate
conviction under the HVFO statute. This claim is cognizable
in a rule 3.800(a) motion. See Hollingsworth v.
State, 802 So.2d 1210 (Fla. 2d DCA 2002).
order to qualify as an HVFO, the Appellant must have a prior
conviction for an enumerated felony. See §
775.084(1)(b)1., Fla. Stat. (2009). An out-of-state
conviction may qualify a defendant as an HVFO if it meets
certain requirements. Pursuant to section 775.084(1)(e),
Florida Statues, a qualifying offense is:
any offense, substantially similar in elements and penalties
to an offense in this state, which is in violation of a law
of any other jurisdiction, whether that of another state, the
District of Columbia, the United States or any possession of
territory thereof, or any foreign jurisdiction, that was
punishable under the law of such jurisdiction at the time of
its commission by the defendant by death or imprisonment
exceeding 1 year.
record in this case indicates that the State relied on a 2007
South Carolina conviction for "assault with intent to
kill, " a common law crime punishable by up to 10 years
in prison under S.C. Code Ann. § 17-25-30. See State
v. Walsh, 388 S.E.2d 777, 779 (1988), overruled on
other grounds by State v. Easler, 489 S.E.2d 617 (S.C.
1997); State v. Mims, 335 S.E.2d 237 (S.C. 1985).
trial court found that the Appellant's prior conviction
for "assault with intent to kill" was similar to
the Florida crime of aggravated assault with a deadly weapon,
which is a qualifying felony for HVFO purposes.[*] §
775.084(1)(b)1.g., Fla. Stat. (2007).
elements of aggravated assault with a deadly weapon in
Florida are: (1) the defendant intentionally and unlawfully
threatened, either by word or act, to do violence to the
victim, (2) at the time, the defendant appeared to have the
ability to carry out the threat, (3) the act of the defendant
created in the mind of the victim a well-founded fear that
violence was about to take place, and (4) the assault was
with a deadly weapon. See Std. Jury Instr. (Crim.)
8.2. The elements of the South Carolina crime of
"assault with intent to kill" are "(1) an
unlawful attempt; (2) to commit a violent injury; (3) to the
person of another; (4) with malicious intent; and (5)
accompanied by the present ability to complete the act."
State v. Walsh, 388 S.E.2d 777, 779 (1988),
overruled on other grounds by State v. Easler, 489
S.E.2d 617 (S.C. 1997). Thus, both crimes require an unlawful
threat or act, to do violence or commit a "violent
injury, " with the present ability to commit the act.
the Florida crime requires the use of a deadly weapon during
the assault in order to qualify as a predicate HVFO offense.
Conversely, based on the required elements, the South
Carolina crime of aggravated assault with intent to kill does
not require a deadly weapon. See Walsh, 388 S.E.2d
at 779; cf. State v. Burton, 589 S.E.2d 6, 9 (S.C.
2003) ("Assault with intent to kill does not require the
use of a firearm."). As a result, the South Carolina
crime of aggravated assault with intent to kill is broader
than the Florida crime of aggravated assault with a deadly
weapon, because a defendant could commit the South Carolina
crime without having a deadly weapon. Accordingly, the
elements of both crimes are not substantially similar.
Cf. Robinson v. State, 692 So.2d 883 (Fla. 1997)
(holding that a Georgia conviction for robbery by sudden
snatching was not a qualified offense for purposes of
sentencing defendant as a habitual felony offender, as
elements of Georgia's robbery by sudden snatching offense
and Florida's robbery offense were not substantially
similar, in light of absence of element of force sufficient
to overcome victim's resistance in Georgia's
offense); Alix v. State, 799 So.2d 359 (Fla. 3d DCA
2001) (holding that a defendant could not be sentenced as a
habitual violent felony offender based upon defendant's
prior Canadian sexual assault conviction; Canadian crime of
sexual assault encompassed less serious conduct that was not
punishable under Florida sexual battery statute).
the trial court denied the motion on the ground that the
record indicates that the Appellant did use a firearm during
the prior assault. However, when determining whether an
out-of-state crime qualifies, the HVFO statute directs that
the comparison be based on whether the crimes have
"substantially similar elements." The
underlying facts of the crime are not determinative of
whether it qualifies as a predicate offense pursuant to the
HVFO statute. Cf. Hankins v. State, 42 So.3d 871
(Fla. 2d DCA 2010) (when determining whether out-of-state
conviction qualifies pursuant to the PRR statute, court must
look at ...