           Supreme Court of Florida
                                     ____________

                                     No. SC15-1873
                                     ____________

                               CARLOS J. ACEVEDO,
                                    Petitioner,

                                            vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                     [May 18, 2017]

QUINCE, J.

       This case is before the Court for review of the decision of the Fourth District

Court of Appeal in Acevedo v. State, 174 So. 3d 437 (Fla. 4th DCA 2015). The

district court certified that its decision is in direct conflict with the decision of the

Fifth District Court of Appeal in Durant v. State, 94 So. 3d 669 (Fla. 5th DCA

2012). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons

that follow, we approve the decision of the Fourth District Court of Appeal and

disapprove of the decision of the Fifth District Court of Appeal to the extent that it

is inconsistent with this opinion.
                  STATEMENT OF THE CASE AND FACTS

      Carlos Acevedo was convicted of lewd and lascivious battery, three counts

of lewd and lascivious molestation, and lewd and lascivious conduct. The trial

court found him to be a sexual predator and sentenced him to life in prison on each

count, to run concurrently. The trial 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. Acevedo, 174 So. 3d

at 437. Acevedo’s sentence was affirmed on direct appeal and, after the denial of

his 3.850 motion, Acevedo filed a motion pursuant to Florida Rule of Criminal

Procedure 3.800(a), arguing that the predicate conviction used was insufficient to

qualify him as a DSFO. Id. Specifically, Acevedo argued that the prior conviction

under section 800.04, Florida Statutes (1981), did not contain elements similar to

section 800.04(4), Florida Statutes (2005), or section 800.04(5), Florida Statutes.

The Fourth District Court of Appeal disagreed and certified conflict with the Fifth

District’s decision in Durant. Id. at 439. This review follows.

                                   DISCUSSION

      The issue before this Court is whether, under the Dangerous Sexual Felony

Offender Act, section 794.0115(2)(e), Florida Statutes (2005), a conviction for an

offense under section 800.04, Florida Statutes (1981), constitutes a “similar offense

under a former designation” to those offenses enumerated in the Act. Because we


                                        -2-
find that a “similar offense” for the purposes of the Act need not be an identical

offense, we approve the Fourth District’s decision below.

      Because this is an issue of statutory interpretation, this Court’s review is de

novo. Plott v. State, 148 So. 3d 90, 93 (Fla. 2014).

      The DSFO Act provides:

             Any person who is convicted of a violation of section 787.025;
      section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5);
      section 825.1025(2) or (3); section 827.071(2), (3), or (4); or section
      847.0145; or of any similar offense under a former designation, which
      offense the person committed when he or she was 18 years of age or
      older, and the person: . . .
             Has been previously convicted of a violation of section
      787.025; section 794.011(2), (3), (4), (5), or (8); section
      800.04(4) or (5); section 825.1025(2) or (3); section 827.071(2), (3),
      or (4); section 847.0145; of any offense under a former statutory
      designation which is similar in elements to an offense described in
      this paragraph; or of any offense that is a felony in another
      jurisdiction, or would be a felony if that offense were committed in
      this state, and which is similar in elements to an offense described in
      this paragraph,
      is a dangerous sexual felony offender, who must be sentenced to a
      mandatory minimum term of 25 years imprisonment up to, and
      including, life imprisonment.
§ 794.0115(2)(e), Fla. Stat. (2005). In short, the DSFO Act states that anyone

previously convicted of one of the enumerated felonies or “of any offense under a

former statutory designation which is similar in elements to an offense described in

this paragraph” is a dangerous sexual felony offender. In 2005, those enumerated

felonies were:

    Luring or enticing a child, section 787.025, Florida Statutes (2005);


                                        -3-
    Sexual battery, section 794.011, Florida Statutes (2005);
    Lewd or lascivious battery or molestation committed upon or in the
     presence of persons less than 16 years of age, section 800.04(4) and (5),
     Florida Statutes (2005);
    Lewd or lascivious offenses committed upon or in the presence of an
     elderly person or disabled person, section 825.1025, Florida Statutes
     (2005);
    Sexual performance by a child, section 827.071, Florida Statutes (2005);
     and
    Selling or buying of minors, section 847.0145, Florida Statutes (2005).

   In 1982, Acevedo was convicted of violating section 800.04, Florida Statutes

(1981). In 1981, section 800.04, Florida Statutes, 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 . . . .
§ 800.04, Fla. Stat. (1981). The 1981 statute therefore prohibited molestation of,

assault of, or lewd or lascivious conduct in the presence of a minor.

      In 2005, section 800.04, Florida Statutes, provided the following:

             (4) Lewd or lascivious battery.--A person who:
             (a) Engages in sexual activity with a person 12 years of age or
      older but less than 16 years of age; or
             (b) Encourages, forces, or entices any person less than 16 years
      of age to engage in sadomasochistic abuse, sexual bestiality,
      prostitution, or 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.
             (5) Lewd or lascivious molestation.--
             (a) A person who intentionally touches in a lewd or lascivious
      manner the breasts, genitals, genital area, or buttocks, or the clothing
      covering them, of a person less than 16 years of age, or forces or



                                        -4-
      entices a person under 16 years of age to so touch the perpetrator,
      commits lewd or lascivious molestation.
             (b) An offender 18 years of age or older who commits lewd or
      lascivious molestation against a victim less than 12 years of age
      commits a felony of the first degree, punishable as provided in s.
      775.082, s. 775.083, or s. 775.084.
             (c)1. An offender less than 18 years of age who commits lewd
      or lascivious molestation against a victim less than 12 years of age; or
             2. An offender 18 years of age or older who commits lewd or
      lascivious molestation against a victim 12 years of age or older but
      less than 16 years of age
             commits a felony of the second degree, punishable as provided
      in s. 775.082(3)(a)4.
             (d) An offender less than 18 years of age who commits lewd or
      lascivious molestation against a victim 12 years of age or older but
      less than 16 years of age commits a felony of the third degree,
      punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
             (6) Lewd or lascivious conduct.--
             (a) A person who:
             1. Intentionally touches a person under 16 years of age in a
      lewd or lascivious manner; or
             2. Solicits a person under 16 years of age to commit a lewd or
      lascivious act
      commits lewd or lascivious conduct.
             (b) An offender 18 years of age or older who commits lewd or
      lascivious conduct commits a felony of the second degree, punishable
      as provided in s. 775.082, s. 775.083, or s. 775.084.
             (c) An offender less than 18 years of age who commits lewd or
      lascivious conduct commits a felony of the third degree, punishable as
      provided in s. 775.082, s. 775.083, or s. 775.084.
§ 800.04(4)-(6), Fla. Stat. (2005). The provisions of the 2005 version of the statute

that are enumerated in the DSFO Act therefore prohibited both lewd and lascivious

battery and lewd or lascivious molestation of a minor.

      Acevedo argues that because the 1981 statute includes “without the intent to

commit sexual battery” it cannot be found similar to the offenses defined in section


                                        -5-
800.04, subsections (4) or (5), Florida Statutes (2005). We, like the Fourth

District, are not persuaded by this argument.

      Determining whether Acevedo met the requirements under the Act, the

Fourth District Court of Appeal opined that the Act “requires similar elements, not

identical elements.” Acevedo, 174 So. 3d at 438. We agree. As the Fourth

District noted,1 “[b]oth statutes proscribe the lewd and lascivious touching of a

child[,] . . . require the victim to be under a certain similar age [and] are second

degree felonies.” Id.

      In Durant, the Fifth District determined that section 800.04(1), Florida

Statutes (1995)2 was not similar to section 800.04(4)-(5), Florida Statutes, for the

purposes of DSFO designation pursuant to section 794.0115(2)(e), Florida

Statutes. Durant, 94 So. 3d at 671. Specifically, the Fifth District stated:



       1. The Fourth District also considered the underlying facts of Acevedo’s
conviction, noting that Acevedo was charged with coercing an eleven year old boy
to allow Acevedo to fellate him, conduct that “is proscribed by subsection (4)(b) of
the 2005 statute.” The district court thus found that the trial court did not err in
finding Acevedo a DSFO. Id. We find that there was no need for the district court
to perform such an analysis because the elements, themselves, are sufficiently
similar. See Dautel v. State, 658 So. 2d 88, 90 (Fla. 1995) (“[T]he elements of a
crime are the surest way to trace that crime.” (quoting Forehand v. State, 537 So.
2d 103, 104 (Fla. 1989))).

      2. In 1995, section 800.04(1) read: “A person who: (1) handles, fondles, or
assaults any child under the age of 16 in a lewd, lascivious, or indecent manner . . .
without committing the crime of sexual battery, commits a felony of the second
degree . . . .” § 800.04(1), Fla. Stat. (1995).


                                          -6-
      [W]e do not believe that the 1995 version of section 800.04(1) is
      similar in elements to sections 800.04(4) and (5). In particular,
      section 800.04(4) requires evidence of sexual activity, whereas there
      is no sexual activity requirement contained in section 800.04(1),
      Florida Statutes (1995). Likewise, section 800.04(5) requires
      evidence that the perpetrator intentionally touched “the breasts,
      genitals, genital area, or buttocks, or the clothing covering them” of
      the minor. Section 800.04(1), Florida Statutes (1995), contains no
      such requirement. Although section 800.04(5) and the 1995 version
      of section 800.04(1) contain other elements that are the same, we
      conclude they do not have similar elements for purposes of section
      794.0115(2)(e).

Id. (footnote omitted). The district court continued, “Further, section 800.04(1),

Florida Statutes (1995), shares similar elements with section 800.04(6), Florida

Statutes [(2012]),[3] which is not a qualifying felony in the DSFO statute.” Id.

(citing § 794.0115(2)(e), Fla. Stat.; Abrams v. State, 971 So. 2d 1033, 1037 (Fla.

4th DCA 2008)). While we agree with the Fifth District that subsection (6) is

closer to the 1981 statute, we disagree that the DSFO Act requires the courts to

find the most similar statute to determine whether a prior offense is a qualifying

felony.

      Acevedo argues that the Fourth District incorrectly looked only to the

similarities between his prior conviction under section 800.04, Florida Statutes

(1981), and his current conviction pursuant to section 800.04, Florida Statutes




      3. The 2012 version of section 800.04(6) is the same as the 2005 version
quoted above.


                                        -7-
(2005). He therefore asserts that this Court must decide the appropriate test for

determining when a prior statute is similar in elements to an offense identified in

section 794.0115, Florida Statutes. Acevedo further argues that his prior

conviction under section 800.04, Florida Statutes (1981), does not contain similar

elements to section 800.04(4) or (5), Florida Statutes (2005). We disagree.

      The conduct prohibited in the 1981 version of section 800.04 is nearly

identical to that prohibited in subsection (5) of the 2005 version of the statute.

Compare § 800.04, Fla. Stat. (1981) (“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 . . . .”) with § 800.04(5)(a)-(b), Fla. Stat. (2005)

(“A person who: [i]ntentionally touches a person under 16 years of age in a lewd or

lascivious manner; or . . . solicits a person under 16 years of age to commit a lewd

or lascivious act commits lewd or lascivious conduct [and] commits a felony of the

second degree.”). There are very few differences between the 1981 statute and

subsection (5) of the 2005 statute:

                  800.04 (1981)                               800.04(5) (2005)

    handles, fondles, assaults                    intentionally touches

    in a lewd, lascivious, or indecent manner     in a lewd or lascivious manner the
                                                              breasts,
                                                              genitals,


                                                -8-
                                                                genital area,
                                                                buttocks, or
    OR                                                          clothing covering those
                                                                 areas
    commits any lewd or lascivious act in the
    presence of
    a child under age 14                          of a child under age 16

    without the intent to commit sexual
    battery



As demonstrated by the chart, the elements of the 1981 version of 800.04 and

subsection (5) of the 2005 statute are remarkably similar. There are few

dissimilarities. First, the 2005 version lists specific areas of the body. Second, the

2005 statute removes the language referring to committing a lewd act in the

presence of a child, which was moved to subsection (7) of the statute. Third, the

statutes protect children of similar ages, but differ on children between the ages of

fourteen and fifteen. The 2005 statute protects all children under the age of

sixteen, whereas the 1981 statute limits its application to children under the age of

fourteen. Last, the 1981 statute excludes conduct committed with intent to commit

sexual battery.

      It is difficult to imagine an offense that would meet all the criteria of the

1981 statute but fail to meet the criteria of the 2005 statute. To “handle, fondle, or

assault, in a lewd, lascivious, or indecent manner” necessarily requires an

intentional touching that is sexual in nature. However, the DSFO Act does not

preclude this Court’s consideration of even that imaginary act because the statute

                                                -9-
requires only that the previous offense be similar, not identical. Because any

offense that would have qualified for a conviction under the 1981 statute would

necessarily have characteristics in common with an offense proscribed by the 2005

statute, the Fourth District did not err in affirming Acevedo’s designation as a

DSFO offender.

      We therefore approve the Fourth District’s decision and disapprove of the

Fifth District’s opinion to the extent that it is inconsistent with this opinion.

      It is so ordered.

LABARGA, C.J., and LEWIS, CANADY, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.

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

PARIENTE, J., concurring in result.

      I concur in result because I would follow the well-reasoned opinion of the

Fifth District Court of Appeal in Durant v. State, 94 So. 3d 669 (Fla. 5th DCA

2012), which properly analyzes whether a defendant’s prior conviction qualifies as

an “offense under a former statutory designation which is similar in elements” for

the purposes of the Dangerous Sexual Felony Offender Act, section

794.0115(2)(e), Florida Statutes (2005). Id. at 670. Contrary to the Fourth

District’s decision below, I would conclude that Acevedo was improperly

designated as a dangerous sexual felony offender (DSFO), based upon his prior


                                         - 10 -
conviction under section 800.04, Florida Statutes (1981). See Acevedo v. State,

174 So. 3d 437, 438 (Fla. 4th DCA 2015). Nevertheless, because the trial court

could have sentenced Acevedo to life in prison without the DSFO designation, this

error was harmless under the applicable standard of review for motions filed

pursuant to Florida Rule of Criminal Procedure 3.800(a). Therefore, I concur in

the majority’s result that Acevedo is not entitled to relief on his motion.

      In Acevedo’s rule 3.800(a) motion under review, Acevedo argued “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).” Id. at 437-38. Looking first to

the DSFO statute, explaining which prior convictions count toward DSFO status,

the pertinent language provides:

              (2) Any person who is convicted of a violation of s.
      787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s.
      825.1025(2) or (3); s. 827.071(2), (3), or (4); or s. 847.0145; or of any
      similar offense under a former designation, which offense the person
      committed when he or she was 18 years of age or older, and the
      person:
               ....
              (e) Has previously been convicted of a violation of s.
      787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s.
      825.1025(2) or (3); s. 827.071(2), (3), or (4); s. 847.0145; of any
      offense under a former statutory designation which is similar in
      elements to an offense described in this paragraph; or of any offense
      that is a felony in another jurisdiction, or would be a felony if that


                                         - 11 -
      offense were committed in this state, and which is similar in elements
      to an offense described in this paragraph,

      is a dangerous sexual felony offender, who must be sentenced to a
      mandatory minimum term of 25 years imprisonment up to, and
      including, life imprisonment.

§ 794.0115, Fla. Stat. (2015) (emphasis added).

      Of critical importance to this case, this Court must determine whether courts

are permitted to consider the underlying facts of the defendant’s prior conviction in

deciding whether that prior offense is “similar in elements” to a qualifying offense

enumerated in the statute. Majority op. at 8. However, the majority, sidestepping

this issue in a footnote, concludes “that there was no need for the district court to

perform such an analysis because the elements [of the 1981 statute], themselves,

are sufficiently similar [to the 2005 statute].” Id. at 6 n.1. By contrast, I would

contend that examining the underlying facts of an individual’s crime to determine

whether the prior conviction is sufficiently similar is not only unnecessary, it is

impermissible. See Dautel v. State, 658 So. 2d 88, 91 (Fla. 1995).

      In Dautel, this Court addressed whether “the trial court [may] consider the

underlying facts in determining whether an out-of-state conviction is analogous to

a Florida statute for the purpose of calculating points for a sentencing guidelines

score sheet.” Id. at 89. In answering this question in the negative—holding that

“only the elements of the out-of-state crime should be considered”—this Court

stated that “[a] conviction establishes only the elements of the crime, and does not

                                         - 12 -
include underlying facts or conduct which are not elements of the offense.” Id. at

89-90. Therefore, despite the fact that the conduct leading to Acevedo’s prior

conviction would currently fall within one of the enumerated offenses, which the

Fourth District considered, Acevedo, 174 So. 3d at 438, the underlying conduct is

outside the scope of our analysis of whether the prior conviction is sufficiently

similar.

      Turning now to the similarities between the enumerated offenses and the

statute under which Acevedo was previously convicted, it is evident that

Acevedo’s prior conviction is more similar in elements to subsections (6) and (7)

of section 800.04, Florida Statutes (2005), than it is to subsection (4) or (5) of the

same section. In 1982, Acevedo was convicted of violating section 800.04, Florida

Statutes, which read in relevant part:

      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 . . . .

The Fifth District, comparing a nearly identical statute to sections 800.04(4) and

800.04(5), correctly noted two key differences: (1) “section 800.04(4) requires




                                         - 13 -
evidence of sexual activity,[4] whereas there is no sexual activity requirement

contained in [the older statutory language;] and (2) “section 800.04(5) requires

evidence that the perpetrator intentionally touched ‘the breasts, genitals, genital

area, or buttocks, or the clothing covering them’ of the minor[, while the older

statute] contains no such requirement.” Durant, 94 So. 3d at 671. The Fifth

District held that the older statute “shares similar elements with section 800.04(6),

Florida Statutes, which is not a qualifying felony in the DSFO statute.” Id.

      The majority’s conclusion posits that “[i]t is difficult to imagine an offense

that would meet all the criteria of the 1981 statute but fail to meet the criteria of the

2005 statute.” Majority op. at 9. Assuming that the majority means an offense that

would meet the criteria of subsection (4) or (5) of the 2005 statute—those offenses

that would qualify as a prior conviction under the DSFO statute—its statement is

belied by the very language in the 1981 statute. Under the 1981 statute, a person

who “knowingly commit[s] any lewd or lascivious act in the presence of such

child, without the intent to commit sexual battery” would clearly commit a

punishable offense. § 800.04, Fla. Stat. (1981). Conversely, under the 2005

statutory scheme, a person performing those same actions would squarely commit




      4. “Sexual activity” is defined as “oral, anal, or vaginal penetration by, or
union with, the sexual organ of another or the anal or vaginal penetration of
another by any other object.” § 800.04 (1)(a), Fla. Stat.


                                         - 14 -
a violation of subsection (7) (Lewd or Lascivious Exhibition), which is not an

enumerated offense pursuant to the DSFO statute. See § 794.0115(2)(e), Fla. Stat.

(2005).

      When the Legislature enacted the DSFO statute, it clearly did not intend to

include the conduct proscribed by subsections (6) and (7) in the types of offenses

that would qualify an offender as a DSFO because it specifically excluded these

subsections from the enumerated offenses. Id. Accordingly, because the elements

of the crime that Acevedo was previously convicted under are most similar to

subsections (6) and (7), I would conclude that the 1981 statute does not qualify as

an “offense under a former statutory designation which is similar in elements to an

offense described in this paragraph.” Id.

      Despite my conclusion that Acevedo was improperly designated a DSFO, I

agree with the majority that his motion for relief under rule 3.800(a) does not merit

relief. Fla. R. Crim. P. 3.800(a). Under the “could-have-been-imposed” harmless

error standard that this Court adopted for motions filed under rule 3.800(a) in

Brooks v. State, 969 So. 2d 238, 238 (Fla. 2007), a defendant “does not require

resentencing if the sentence legally could have been imposed (absent a departure)

using a correct scoresheet.” Id. The record reflects that Acevedo’s scoresheet

totaled 458.1 points; therefore, the trial court could have imposed a life sentence

without the DSFO designation, and any error from Acevedo being improperly


                                        - 15 -
designated a DSFO is harmless. For these reasons, I agree with the majority’s

conclusion that Acevedo is not entitled to relief on his rule 3.800 motion.

However, I cannot agree with the reasoning of the Fourth District’s decision

approved by the majority and, instead, would approve of the Fifth District’s

holding in Durant.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

      Fourth District - Case No. 4D14-3124

      (Broward County)

Peter D. Webster, Christine Davis Graves, and James Parker-Flynn of Carlton
Fields, Tallahassee, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Celia Terenzio,
Bureau Chief, and Mark J. Hamel, Assistant Attorney General, West Palm Beach,
Florida,

      for Respondent




                                        - 16 -
