Florida Criminal Law Opinions

VICTOR RIVERA, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC07-936.

Supreme Court of Florida.

February 26, 2009.

Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions, Third District — Case No. 3D07-482, (Dade County).

Carlos J. Martinez, Public Defender, and Shannon Patricia McKenna, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau Chief, and Douglas J. Glaid, Assistant Attorneys General, Miami, Florida, for Respondent.

PER CURIAM.

We initially accepted jurisdiction to review the decision of the Third District Court of Appeal Rivera v. State, 954 So. 2d 1216 (Fla. 3d DCA 2007), review granted, 968 So. 2d 557 (Fla. 2007) (table), based on express and direct conflict with the decisions of the other district courts Hinkel v. State, 937 So. 2d 1201 (Fla. 5th DCA 2006), Briggs v. State, 929 So. 2d 1151 (Fla. 5th DCA 2006), Reed v. State, 810 So. 2d 1025 (Fla. 2d DCA 2002), Henderson v. State, 720 So. 2d 1121 (Fla. 4th DCA 1998), Tillman v. State, 693 So. 2d 626 (Fla. 2d DCA 1997), Silverstein v. State, 654 So. 2d 1040 (Fla. 4th DCA 1995), and Van Ellis v. State, 455 So. 2d 1065 (Fla. 1st DCA 1984). See art. V, § 3(b)(4), Fla. Const. After further, full consideration, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is dismissed.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

NO MOTION FOR REHEARING WILL BE ALLOWED.

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STATE OF FLORIDA, Petitioner,
v.
DAVID DWAYNE BROWN, Respondent.

No. SC07-2247.

Supreme Court of Florida.

February 26, 2009.

Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions, Third District — Case No. 3D04-2348,(Dade County).

Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau Chief, and Ansley E. Peacock, Assistant Attorneys General, Miami, Florida, for Petitioner.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Respondent.

PER CURIAM.

We have for review the decision of the Third District Court of Appeal Brown v. State, 967 So. 2d 236 (Fla. 3d DCA 2007), which expressly and directly conflicts with the decision of the Fourth District Court of Appeal Garzon v. State, 939 So. 2d 278 (Fla. 4th DCA 2006), approved, 980 So. 2d 1038 (Fla. 2008). At the time the Third District issued its decision in Brown, Garzon was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We stayed proceedings in this case pending disposition of Garzon, in which we ultimately approved the Fourth District’s underlying Garzon decision. See Garzon v. State, 980 So. 2d 1038 (Fla. 2008). We thereafter issued an order in this case directing respondent to show cause why we should not accept jurisdiction, summarily quash the decision being reviewed, and remand for reconsideration in light of our decision in Garzon. Upon reviewing respondent’s response and petitioner’s reply thereto, we issued an order accepting jurisdiction and ordering merits briefing. Petitioner thus filed its initial brief and respondent his answer brief, whereupon petitioner filed a motion to strike respondent’s answer brief.

In considering the motion, the Court had occasion to review anew the cases at issue and the parties’ response and reply to our order to show cause. Upon reevaluation, we have determined that merits briefing is unnecessary and that the Court should proceed, as it originally intended, to summarily quash the decision being reviewed and remand for reconsideration in light of our decision in Garzon. We have already accepted jurisdiction by order. The decision under review is quashed, and this matter is remanded to the Third District for reconsideration upon application of this Court’s decision in Garzon. Petitioner’s motion to strike respondent’s answer brief is accordingly denied as moot.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

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MURRAY BREITBERG, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC07-13.

Supreme Court of Florida.

February 26, 2009.

Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions Fourth District — Case No. 4D06-3681, (Broward County).

Murray Breitberg, pro se, South Bay, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, for Respondent.

PER CURIAM.

We have for review Breitberg v. State, 942 So. 2d 439 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal cited as authority its decision Saintelien v. State, 937 So. 2d 234 (Fla. 4th DCA 2006), approved in result, 990 So. 2d 494 (Fla. 2008), and certified conflict with the Second District Court of Appeal’s decision King v. State, 911 So. 2d 229 (Fla. 2d DCA 2005), and the Fifth District Court of Appeal’s decision Kidd v. State, 855 So. 2d 1165 (Fla. 5th DCA 2003). At the time the Fourth District Court issued its decision in Breitberg, its Saintelien decision was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed the present case pending our disposition of Saintelien, in which we ultimately approved in result the Fourth District Court’s underlying Saintelien decision, and approved the decisions of the Second and Fifth District Courts in King and Kidd “to the extent that a rule 3.800(a) motion may be used to challenge a sexual predator designation when it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.” Saintelien v. State, 990 So. 2d 494, 497 (Fla. 2008).

We have determined to exercise jurisdiction and grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fourth District Court for reconsideration upon review of the record and application of this Court’s decision in Saintelien.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

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CARLOS MACIAS, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC07-1229.

Supreme Court of Florida.

February 26, 2009.

Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions, Fourth District — Case No. 4D07-1071, (St. Lucie County).

Carlos Macias, pro se, Wewahitchka, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, for Respondent.

PER CURIAM.

We have for review Macias v. State, 956 So. 2d 529 (Fla. 4th DCA 2007), in which the Fourth District Court of Appeal cited as authority its decision Saintelien v. State, 937 So. 2d 234 (Fla. 4th DCA 2006), approved in result, 990 So. 2d 494 (Fla. 2008). At the time the Fourth District Court issued its decision in Macias, its Saintelien decision was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So. 2d 418 (Fla. 1981).

We stayed the present case pending our disposition of Saintelien, in which we ultimately held that “a rule 3.800(a) motion to correct an illegal sentence may be used to challenge a sexual predator designation, but limit our holding to cases where it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.” Saintelien v. State, 990 So. 2d 494, 495 (Fla. 2008). In so holding, we approved the result the Fourth District Court’s underlying Saintelien decision. See id. at 497.

We have determined to accept jurisdiction and grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fourth District Court for reconsideration upon review of the record and application of this Court’s decision in Saintelien.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

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ROBERT E. DRAGON, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC06-2001.

Supreme Court of Florida.

February 26, 2009.

Application for Review of the Decision of the District Court of Appeal ¶ Certified Direct Conflict of Decisions, Fourth District ¶ Case No. 4D06-3196, (Broward County).

John R. Blue and Stephanie Zimmerman of Carlton Fields, P.A., St. Petersburg, Florida, and Alina Alonso of Carlton Fields, P.A., Miami, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, for Respondent.

PER CURIAM.

We have for review Dragon v. State, 937 So. 2d 781 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal certified conflict with the Second District Court of Appeal’s decision King v. State, 911 So. 2d 229 (Fla. 2d DCA 2005), and the Fifth District Court of Appeal’s decision Kidd v. State, 855 So. 2d 1165 (Fla. 5th DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We stayed the present case pending our disposition of Saintelien v. State, 990 So. 2d 494 (Fla. 2008), in which we ultimately approved the decisions of the Second and Fifth District Courts in King and Kidd “to the extent that a rule 3.800(a) motion may be used to challenge a sexual predator designation when it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.” Saintelien, 990 So. 2d at 497.

We have determined to exercise jurisdiction and grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fourth District Court for reconsideration upon application of this Court’s decision in Saintelien.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

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IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2008-07.

No. SC08-1488

Supreme Court of Florida

February 26, 2009

Original Proceeding — Standard Jury Instructions in Criminal Cases.

Judge Lisa T. Munyon, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Ninth Judicial Circuit, Orlando, Florida, for Petitioner

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the Standard Jury Instructions in Criminal Cases. The Committee proposes the following new instructions: 16.12 — Leaving a Child Unattended or Unsupervised in a Motor Vehicle;¹ 25.19 — Unlawful Sale, Manufacture, Alteration, Delivery, Uttering or Possession of Counterfeit-Resistant Prescription Blanks for Controlled Substances; and 29.13 — Animal Fighting or Baiting, and requests that the Court authorize the new instructions for publication and use.² The Committee published the proposals for comment in The Florida Bar News prior to submission to the Court. No comments were received by the Committee.

Having considered the Committee’s report, we hereby authorize the publication and use of the new instructions as set forth in the appendix to this opinion.³ In doing so, we express no opinion on the correctness of those instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck through. The instructions as set forth in the appendix⁴ shall be effective when this opinion becomes final.

It is so ordered.

QUINCE, C.J., and WELLS, PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

APPENDIX 16.7 LEAVING A CHILD UNATTENDED OR UNSUPERVISED IN A MOTOR VEHICLE § 316.6135, Fla. Stat.To prove the crime of Leaving a Child Unattended or Unsupervised in a Motor Vehicle, the State must prove the following [three] [four] elements beyond a reasonable doubt:

1. (Defendant) was a [parent of] [legal guardian for] [person responsible for] (victim).

2. (Victim) was less than 6 years of age.

Give 3a or 3b as applicable.

3. (Defendant) left (victim) unattended or unsupervised in a motor vehicle

a. for more than 15 minutes.

Note to Judge: Give 3b, if applicable, only when the crime charged is a violation of F.S. 316.6135(4).

b. while [the motor was running] [the health of the victim was in danger].

Give if applicable.

4. In so doing, [great bodily harm] [a permanent disability] [permanent disfigurement] was caused to (victim).

Lesser Included Offenses

       LEAVING A CHILD UNATTENDED OR UNSUPERVISED
            IN A MOTOR VEHICLE — 316.6135(4)

CATEGORY ONE      CATEGORY TWO   FLA. STAT.       INS. NO.

Leaving a Child                  316.6135(1)(a)
Unattended

                  None

CommentThis instruction was adopted in 2009.

25.19 UNLAWFUL SALE, MANUFACTURE, ALTERATION, DELIVERY, UTTERING OR POSSESSION OF COUNTERFEIT-RESISTANT PRESCRIPTION BLANKS FOR CONTROLLED SUBSTANCES § 831.311, Fla. Stat.To prove the crime of Unlawful Sale, Manufacture, Alteration, Delivery, Uttering or Possession of Counterfeit-Resistant Prescription Blanks for Controlled Substances, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [sold] [manufactured] [altered] [delivered] [uttered] [possessed] any counterfeit-resistant prescription blanks for controlled substances.

2. The counterfeit-resistant prescription blanks for controlled substances were in the form and content established by the Department of Health pursuant to law.

3. (Defendant) intended [to injure or defraud any person] [to facilitate (insert alleged violation of s. 893.13 as charged in the Information)].

Definition.

To “utter” means to pass, present or publish.

Lesser Included Offenses

         UNLAWFUL SALE, MANUFACTURE, ALTERATION,
DELIVERY, UTTERING OR POSSESSION OF COUNTERFEIT-RESISTANT
           PRESCRIPTION BLANKS FOR CONTROLLED
                        831.311

   CATEGORY ONE   CATEGORY TWO   FLA. STAT.   INS. NO.
   None
                  Attempt        777.04(1)    5.1

CommentThe Department of Health is directed by section 893.065, Florida Statutes, to develop and adopt by rule the form and content for a counterfeit-resistant prescription blank which may be used by practitioners for the purpose of prescribing a controlled substance listed in Schedule II, Schedule III, or Schedule IV.

This instruction was adopted in 2009.

29.13(b) ANIMAL FIGHTING OR BAITING § 828.122, Fla. Stat.To prove the crime of Animal [Fighting] [Baiting], the State must prove the following [one] [three] element(s) beyond a reasonable doubt:

Give as applicable, if (3)(a), (b), (c), (d), (e), (g) or (h) is charged: (Defendant) knowingly

[[baited] [bred] [trained] [transported] [sold] [owned] [possessed] [used] a [wild] [domestic] animal for the purpose of animal [fighting] [baiting].]

[[owned] [possessed] [sold] equipment for use in the [baiting] [breeding] [training] [transporting] [selling] [owning] [possessing] [using] of a [wild] [domestic] animal for the purpose of animal [fighting] [baiting].]

[[owned] [leased] [managed] [operated] [had control of] property used for the [baiting] [breeding] [training] [transporting] [selling] [owning] [possessing] [using] of a [wild] [domestic] animal for the purpose of animal [fighting] [baiting].]

[[promoted][staged] [advertised] [charged an admission fee to] a [fight] [baiting] between two or more animals.]

[performed [a service] [an act] to facilitate animal [fighting] [baiting], including, but not limited to, [providing security] [refereeing] [handling or transporting animals] [being a stakeholder of any money wagered on animal fighting or baiting].]

[bet or wagered [money] [valuable consideration] on the [fighting] [baiting] of animals.]

[attended the [fighting] [baiting] of animals.]

Give only if (3)(f) is charged:

1. An animal was impounded under the “Animal Fighting Act.”

2. (Defendant) knowingly [removed] [facilitated the removal of] the animal from [an agency where the animal was impounded] [a location designated by the court].

3. [He][She] did so without prior authorization of the court.

Possession of an animal alone does not constitute a violation.

“Animal fighting” means fighting between roosters or other birds or between dogs, bears, or other animals.

“Baiting” means to attack with violence, to provoke, or to harass an animal with one or more animals for the purpose of training an animal for, or to cause an animal to engage in, fights with or among other animals, including the use of live animals in the training of racing greyhounds.

Give if applicable. See section (9).

It is a defense to this crime if [any person is simulating a fight for the purpose of using the simulated fight as part of a motion picture which will be used on television or in a motion picture as long as the crime of cruelty to animals is not committed. (Define animal cruelty. See § 828.12, Fla. Stat.)] [any person is using animals to pursue or take wildlife or to participate in hunting regulated or subject to being regulated by the rules and regulations of the Fish and Wildlife Conservation Commission.] [any person is using animals to work livestock for agricultural purposes.] [any person is conducting or engaging in a simulated or bloodless bullfighting exhibition.] [any person is using dogs to hunt wild hogs or to retrieve domestic hogs pursuant to customary hunting or agricultural practices.]

Lesser Included OffensesNo lesser included offenses have been identified for this offense.

CommentThis instruction was adopted in 2009.

—————

Notes:

1. As submitted to the Court and previously published in The Florida Bar News, this instruction was numbered 16.7. That instruction number, however, is assigned to the instruction for Use of a Child in a Sexual Performance, previously authorized for use in In re Standard Jury Instructions in Criminal Cases—Report No. 2007-08, 995 So. 2d 489 (Fla. 2008) (Case No. SC07-1841).

2. We have jurisdiction. See art. V, § 2(a), Fla. Const.

3. In instruction 29.13(b), we have included reference to the statutory provision that defines “animal cruelty,” section 828.12, Florida Statutes, to make the instruction consistent with section 828.122(9)(a), Florida Statutes.

4. The amendments as reflected in the appendix are to the Standard Jury Instructions in Criminal Cases as they appear on the Court’s website at www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.

—————

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Rigoberto Perdomo, Appellant,
v.
The State of Florida, Appellee.

No. 3D09-132

District Court of Appeal of Florida, Third District.

Opinion filed February 25, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jorge Perez, Judge, Lower Tribunal No. 97-2520.

Rigoberto Perdomo, in proper person.

Bill McCollum, Attorney General, for appellee.

Before WELLS, SUAREZ, and SALTER, JJ.

WELLS, J.

This is an appeal from an order denying a Florida Rule of Criminal Procedure 3.850 motion. On appeal from a summary denial of a motion for post-conviction relief, this Court must reverse unless the record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D).

Appellant’s motion raises four claims of ineffective assistance of counsel. The trial court denied relief without holding an evidentiary hearing and attached portions of the record below showing conclusively that appellant is entitled to no relief as to his first claim, regarding the instructions given to the jury at his trial, and his fourth claim, regarding double jeopardy. However, the court below failed to attach those portions of the record that would refute appellant’s second and third claims, regarding counsel’s advice regarding a plea offer and counsel’s failure to pursue a second plea when the opportunity arose.

We, therefore, reverse and remand for either an evidentiary hearing on these two claims or for summary disposition supported by those portions of the record (which shall be attached to the summary disposition order) conclusively showing that appellant is entitled to no relief. See Hilbert v. State, 981 So. 2d 1274, 1274-75 (Fla. 3d DCA 2008); Langdon v. State, 947 So. 2d 460 (Fla. 3d DCA 2006).

Reversed and remanded with instructions.

Not final until disposition of timely filed motion for rehearing.

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CHRISTOPHER THOMPKINS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-4601.

District Court of Appeal of Florida, Fourth District.

February 25, 2009.

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case No. 03-10194 CF10A.

Christopher Thompkins, Wewahitchka, pro se.

No appearance required for appellee.

PER CURIAM.

We affirm the trial court’s denial of Christopher Thompkins’s motion for jail credit. This court’s affirmance of the claim is without prejudice to Thompkins filing a legally sufficient rule 3.800(a) or 3.850 motion in the trial court establishing through specifically identified record evidence that he is entitled to additional jail credit. See Warren v. State, 980 So. 2d 1204 (Fla. 4th DCA 2008); Toro v. State, 719 So. 2d 947, 948 (Fla. 4th DCA 1998).

We note that Thompkins’s initial brief includes details not included in the motion filed below and therefore not considered by the trial court. To state a sufficient claim, Thompkins must allege and identify records showing the date the Broward County arrest warrant(s) was formally served on him while he was in the Miami-Dade County jail. See Gethers v. State, 838 So. 2d 504 (Fla. 2003); Jesel v. State, 995 So. 2d 1160 (Fla. 5th DCA 2008); Ervin v. State, 971 So. 2d 995 (Fla. 5th DCA 2008).

Gross, C.J., Warner and May, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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JAVARO BROWN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-3524.

District Court of Appeal of Florida, Fourth District.

February 25, 2009.

Appeal of order denying rule 3.800 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet, Judge; L.T. Case Nos. 2006CF006267BXX and 2007CF10687AXX.

Javaro Brown, Moore Haven, pro se.

No appearance required for appellee.

PER CURIAM.

Javaro Brown appeals from an order denying his rule 3.800(a) motion seeking additional jail credit. Brown alleges that the court file conclusively shows his entitlement to more jail credit. He also provides an inter-office memorandum from the Palm Beach Sheriff’s Office to support his claim.

In denying relief the trial court elected to treat the motion as a rule 3.850 motion. The order references the “plea contract” and notes that it demonstrated that Brown waived any additional credit. That document was not made part of the record below.

We reverse and remand for further review of this matter. On remand the trial court considering the matter as a rule 3.800 motion can either correct Brown’s sentence, giving him the appropriate jail time credit, or attach to the order of denial the portion of the record which conclusively shows the defendant waived the entitlement to such credit. See Cisneros v. State, 985 So.2d 678 (Fla. 4th DCA 2008); Cheatum v. State, 992 So. 2d 877 (Fla. 5th DCA 2008). If the trial court is inclined to treat the motion as one seeking rule 3.850 relief, Brown should have the opportunity to amend his motion accordingly. Woody v. State, 993 So.2d 1158 (Fla. 4th DCA 2008). See also White v. State, 33 Fla. L. Weekly D2806 (Fla. 4th DCA Dec. 10, 2008).

Reversed and Remanded for Further Proceedings. POLEN, STEVENSON and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Eric De La Portilla, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-3146

District Court of Appeal of Florida, Third District.

Opinion filed February 25, 2009.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, John Thornton, Judge, Lower Tribunal No. 02-25914.

Eric De La Portilla, in proper person.

Bill McCollum, Attorney General, for appellee.

Before GERSTEN, C.J., LAGOA, J., and SCHWARTZ, Senior Judge.

PER CURIAM.

Eric De La Portilla (“defendant”) appeals the summary denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse because the trial court erred in finding that defendant’s conviction for battery on a law enforcement officer qualified for a violent career criminal sentence. See State v. Hearns, 961 So. 2d 211 (Fla. 2007). Accordingly, we reverse and remand to resentence defendant without the violent career criminal designation on the battery on a law enforcement officer count.

Reversed and remanded with instructions

Not final until disposition of timely filed motion for rehearing.

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