          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         CARLOS J. ACEVEDO,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D14-3124

                             [July 29, 2015]

   Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Paul L. Backman,
Judge; L.T. Case No. 06-002820CF10A.

   Carlos J. Acevedo, Crestview, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals an order summarily denying his rule 3.800(a)
motion. He argues the trial court erred in imposing a mandatory minimum
twenty-five-year sentence pursuant to section 794.0115(2), Florida
Statutes (2005), because his predicate crime did not satisfy the statute.
We disagree and affirm.

    A jury convicted the defendant of lewd and lascivious battery, three
counts of lewd and lascivious molestation, and lewd and lascivious
conduct. The court found him to be a sexual predator and sentenced him
to life in prison on each count, to run concurrently. The court declared
him to be a dangerous sexual felony offender (“DSFO”), pursuant to section
794.0115(2), Florida Statutes, and imposed a mandatory minimum
twenty-five-year sentence.

   The defendant did not raise a sentencing issue in either his direct
appeal or subsequent rule 3.850 motion. We affirmed his conviction and
sentence on direct appeal, and the trial court’s summary denial of his rule
3.850 motion in his subsequent appeal. Acevedo v. State, 110 So. 3d 461
(Fla. 4th DCA 2013) (unpublished table decision); Acevedo v. State, 20 So.
3d 859 (Fla. 4th DCA 2009) (unpublished table decision).

   In his most recent rule 3.800(a) motion, the defendant challenged the
twenty-five-year mandatory minimum part of his sentence. He claimed
the predicate conviction used to qualify him as a DSFO was insufficient.
The State responded, and the trial court summarily denied the motion. He
now appeals the order denying his motion.

   The defendant argued in his motion that he did not qualify as a DSFO
because his prior conviction under section 800.04, Florida Statutes (1981),
did not contain elements similar to section 800.04(4), Florida Statutes
(2005) (lewd or lascivious battery), or section 800.04(5), Florida Statutes
(2005) (lewd or lascivious molestation). We disagree.

    The DSFO statute enumerates various qualifying prior offenses,
including violations of sections 800.04(4) and (5), but also includes “any
offense under a former statutory designation which is similar in elements
to an offense described in this paragraph.” § 794.0115(2)(e), Fla. Stat.
(2005). The defendant’s 1981 conviction was for a violation of a former
version of section 800.04, which provided:

      Any person who shall handle, fondle or make an assault upon
      any child under the age of 14 years in a lewd, lascivious or
      indecent manner, or who shall knowingly commit any lewd or
      lascivious act in the presence of such child, without the intent
      to commit sexual battery shall be guilty of a felony of the
      second degree, punishable as provided in s. 775.082, s.
      775.083 or s. 775.084.

§ 800.04, Fla. Stat. (1981).

   In 2005, section 800.04 provided, in relevant part:

      (4) LEWD OR LASCIVIOUS BATTERY.—A person who:
      ....
      (b) Encourages, forces, or entices any person less than 16
      years of age to engage in . . . any other act involving sexual
      activity commits lewd or lascivious battery, a felony of the
      second degree, punishable as provided in s. 775.082, s.
      775.083, or s. 775.084.

§ 800.04(4), Fla. Stat. (2005).


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   The DSFO statute requires similar elements, not identical elements. To
determine if the statutes are similar, we focus on their similarities and not
their dissimilarities. And, there are similarities between the 1981 and
2005 statutes.

   Both statutes proscribe the lewd or lascivious touching of a child.
Section 800.04 (1981) prohibited “any person from making “an assault
upon any child under the age of 14 years in a lewd, lascivious or indecent
manner. . . .” Section 800.04(4)(b) (2005) defines a lewd or lascivious
battery as encouraging, forcing or enticing “any person less than 16 years
of age to engage in . . . any other act involving sexual activity.” Both
statutes require the victim to be under a certain similar age. Both statutes
are second degree felonies.

    In 1981, the defendant was charged with coercing an 11-year-old boy
to allow the defendant to perform oral sex on him. That conduct is
proscribed by subsection (4)(b) of the 2005 statute. Thus, had the same
crime been committed in 2005, it would have satisfied the similar elements
of section 800.04(4)(b).

   We agree with the State, while not identical, the statutes are similar.
The court did not err in finding the defendant to be a DSFO and imposing
a twenty-five-year mandatory minimum sentence.

   The defendant relies on Durant v. State, 94 So. 3d 669 (Fla. 5th DCA
2012), to support his position that the statutes are not similar. We
understand that by focusing on the dissimilarities of two statutes, a court
can conclude the statutes are dissimilar. But, we disagree that the focus
should be on the dissimilarities between the two statutes.

   In Durant, the defendant also challenged his classification as a DSFO
and the imposition of a twenty-five-year mandatory minimum sentence on
direct appeal.      The defendant was convicted of violating section
794.011(8)(a), Florida Statutes (2012), for “committing an unnatural or
lascivious act and solicitation of a child under eighteen years of age to
engage in an act that constitutes sexual battery by a person who is in a
position of familial or custodial authority.” Id. at 670. In designating the
defendant as a DSFO, the trial court relied upon a predicate conviction for
a violation of section 800.04(1), Florida Statutes (1995). That section is
nearly identical to the 1981 version of section 800.04.

   Section 800.04(1) (1995) made it a second degree felony to “handle[],
fondle[], or assault[] any child under the age of 16 years in a lewd,
lascivious, or indecent manner . . . without committing the crime of sexual

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battery.” Id. at 671. The state argued that the elements of section
800.04(1) were similar to the elements of sections 800.04(4) and (5). Id.
The court reviewed the two statutory provisions and did “not believe that
the 1995 version of section 800.04(1) [was] similar in elements to sections
800.04(4) and (5).” Id. It focused on the dissimilarities between the two
statutes, and reversed the mandatory minimum sentence. Id. at 672.

   The purpose of the dangerous sexual felony offender statute was to
provide an enhanced sentence to offenders who had previously been
convicted of enumerated provisions of the Florida Statutes or statutes with
similar elements. The serious nature of the crime, the defendant’s
recidivism, and the young age of the victim, begged for enhanced
sentencing. Our legislature provided the enhanced sentencing. By our
decision, we enforce the legislature’s intent.

  To the extent our decision conflicts with the Fifth District’s decision in
Durant, we certify conflict.

   We affirm the order denying the defendant’s rule 3.800(a) motion.

   Affirmed.

CIKLIN, C.J., and GROSS, J., concur.

                           *           *       *

   Not final until disposition of timely filed motion for rehearing.




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