       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                            JAMES E. LONG,
                               Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-3261

                             [July 22, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Dan L. Vaughn, Judge; L.T. Case No.
472016CF000332CFAXMX.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

    James E. Long raises eight issues in this appeal of his judgment and
sentence. In a prior opinion, we declined to address seven of those issues
and remanded the case to allow the circuit court to determine whether it
could conduct a nunc pro tunc competency evaluation. Long v. State, 268
So. 3d 813 (Fla. 4th DCA 2019). On remand, the court conducted a nunc
pro tunc competency evaluation and found Long competent during his
trial. We affirm the court’s ruling on competency and now turn to the
remaining seven issues on appeal. We affirm six of the remaining issues
without further comment. The last issue requires us to vacate Long’s
sentence and remand the case for resentencing.

    For his final issue, Long argues the court erred when it relied on
convictions obtained in Indiana to sentence him as a habitual felony
offender and prison releasee reoffender.
   A habitual felony offender is “a defendant for whom the court may
impose an extended term of imprisonment . . . .” § 775.084(1)(a), Fla. Stat.
(2016). To sentence a defendant as a habitual felony offender, the court
must find, in relevant part, that: (1) “[t]he defendant has previously been
convicted of any combination of two or more felonies in this state or other
qualified offenses”; and (2) “[t]he felony for which the defendant is to be
sentenced was committed . . . [w]ithin 5 years of the date of the conviction
of the defendant’s last prior felony or other qualified offense . . . .” §
775.084(1)(a)1., 2.b., Fla. Stat. (emphasis added).

  The issue turns on the phrase “other qualified offense” in section
775.084(1)(a)2.b. The statute defines “qualified offense” as:

      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 . . . 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.

§ 775.084(1)(e), Fla. Stat. (2016).

   The statute requires us to analyze the out-of-state conviction and the
equivalent Florida offense to determine whether they are substantially
similar in elements and penalties. Long’s out-of-state conviction was for
driving under the influence in violation of Indiana Code section 9-30-5-3,
which allows for the elevation of a DUI conviction to a felony if the
defendant had one prior DUI conviction in a five-year period. Ind. Code §
90-30-5-3(a)(1) (2014).

    The State and Long agree that the closest Florida counterpart to
Indiana Code section 9-30-5-3(a)(1) is section 316.193(2)(b)1., Florida
Statutes (2014). Like Indiana’s code, section 316.193 allows a DUI to be
treated as a felony at times. But Florida’s statute elevates the offense to a
felony if the defendant has a third DUI within a ten-year period. §
316.193(2)(b)1., Fla. Stat.; see also Davis v. State, 31 So. 3d 887, 888 (Fla.
4th DCA 2010) (treating the requirement of multiple prior DUI convictions
as an essential element of a DUI felony (citing Johnson v. State, 994 So. 2d
960, 963 (Fla. 2008))).

   The statutes must be substantially similar, and the out-of-state statute
cannot be broader than Florida’s statute. For example, in Hollingsworth
v. State, 802 So. 2d 1210, 1211 (Fla. 2d DCA 2002), the Second District
held that the Michigan felony offense of larceny was not substantially

                                      2
similar to any Florida offense. Michigan’s larceny statute stated: “Any
person who shall commit the crime of larceny by stealing in any dwelling
house, house trailer, office, store . . . or any building used by the public
shall be guilty of a felony.” Id. (quoting Mich. Comp. Laws § 750.360
(1979)).   In comparison, Florida’s statute required that burglarized
premises not be open to the public. Id. (citing § 810.02(1), Fla. Stat.
(1993)). Furthermore, while Florida’s grand theft statute included a
monetary amount, Michigan’s statute did not. Id. (citing § 812.014(1), Fla.
Stat. (1993)). The Second District noted that “[t]he Michigan statute is far
broader and would allow a conviction where a defendant committed
larceny in a store that was open to the public or even where he stole office
supplies from his workplace.” Id. As a result, the court held that the
offense of larceny in Michigan was not a qualified offense under the
habitual offender statute. Id.

   In another case, Howard v. State, 245 So. 3d 962, 963 (Fla. 1st DCA
2018), the First District held that a conviction in South Carolina for
“assault with intent to kill” was not substantially similar in elements and
penalties to Florida’s crime of aggravated assault with a deadly weapon.
The First District found that “both crimes require an unlawful threat or
act, to do violence or commit a ‘violent injury,’ with the present ability to
commit the act.” Id. at 964 (citing Fla. Std. Jury Instr. (Crim.) 8.2; State
v. Walsh, 388 S.E.2d 777, 779 (S.C. 1988), overruled on other grounds by
State v. Easler, 489 S.E.2d 617 (S.C. 1997)). But, the court stated, “the
Florida crime requires the use of a deadly weapon during the assault in
order to qualify as a predicate [habitual violent felony offender] offense.”
Id. And the South Carolina crime did not require the use of a deadly
weapon. Id. So, the court held the South Carolina conviction was not a
substantially similar offense. Id. (citations omitted).

   Here, the Indiana statute treats a DUI as a felony if the defendant was
convicted of a DUI within the prior five years. Ind. Code § 90-30-5-3(a)(1).
In Florida, the period is ten years, but Florida requires two prior offenses.
§ 316.193(2)(b)1., Fla. Stat. The State argues that these statutes are
substantially similar because “the number of prior convictions is
proportional to the timeframe specified.” That may be true. But the
Florida legislature chose the required number of convictions and the
timeframe in which those convictions must occur. We are not concerned
with the legislature’s reasons for doing so. Nor are we interested in
engaging in calculations to amend the statute.

   Like the statutes in Hollingsworth and Howard, the Florida and Indiana
statutes are not substantially similar. As a result, we agree with Long that
this difference precluded the court from treating the Indiana convictions

                                     3
as qualifying offenses for purposes of treating Long as a habitual felony
offender.

    Finally, like the habitual felony offender statute, the prison releasee
reoffender statute requires an analysis of the Florida and out-of-state
statutes. See § 775.082(9)(a)1.k., Fla. Stat. (2016); see also Hankins v.
State, 42 So. 3d 871, 873 (Fla. 2d DCA 2010) (concluding “the out-of-state
offense referred to in section 775.082(9)(a) must be interpreted to require
that the elements of the out-of-state offense would be sufficient for a
conviction under a Florida statute that is punishable as a felony” (footnote
omitted)). Based on our conclusion that the Indiana conviction was not
sufficient for a conviction under Florida’s DUI statute, we also conclude
the court erred in sentencing Long as a prison releasee reoffender.

    In summary, we affirm seven of the eight issues Long raises on appeal.
But we agree with him on one: The court erred when it sentenced Long
under the habitual felony offender and prison releasee reoffender statutes.
As a result, we affirm Long’s conviction, vacate his sentence, and remand
for resentencing.

   Affirmed in part, reversed in part, and remanded.

CIKLIN and GERBER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     4
