         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-3286
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JUSTIN RASHAD HOWARD,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Waddell A. Wallace, III, Judge.

                          April 30, 2018


PER CURIAM.

     The 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.

    In 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
fleeing 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).

     In 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.

The 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).

     The 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).



    *  Aggravated assault may be committed in two ways in
Florida, (1) with a deadly weapon, or (2) with the intent to
commit a felony. See § 784.021, Fla. Stat. (2007). The HVFO
statute lists only aggravated battery with a deadly weapon, and
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     The 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.

     However, 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


as such aggravated battery with intent to kill is not a qualifying
offense. See McCoy v. State, 942 So. 2d 919 (Fla. 2d DCA 2006).



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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).

     Here, 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 elements of the offense, not the underlying actions or conduct).
Therefore, we reverse and remand the denial of the Appellant’s
motion for further proceedings.

    REVERSED and REMANDED for further proceedings.

B.L. THOMAS, C.J., and BILBREY and JAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Justin Rashad Howard, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




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