          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D16-1557
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LARRY ANTHONY CROSLEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.

                           May 10, 2018


ROBERTS, J.

     The appellant, Larry Anthony Crosley, challenges the trial
court’s denial of his Florida Rule of Criminal Procedure 3.800(b)(2)
motion challenging his sentence of life imprisonment based on the
trial court’s finding that he qualified as a Prison Releasee
Reoffender (PRR). The State has conceded error, and we find that
the appellant’s conviction for burglary with assault or battery does
not qualify for the PRR designation and reverse.

     The appellant was convicted in March of 2016 of burglary of a
conveyance with assault or battery. Because burglary of a
conveyance with assault or battery is not an enumerated offense
under the PRR statute, the offense can only qualify if it falls under
section 775.082(9)(a)1.o., Florida Statutes (2015), which states,
“[a]ny felony that involves the use or threat of physical force or
violence against an individual.” The Florida Supreme Court has
stated that in order for an offense to qualify under subsection o.,
the “use or threat of physical force or violence must be a necessary
element of the crime,” and if the crime may be committed without
the “use or threat of physical force or violence,” then that crime
does not qualify. State v. Hearns, 961 So. 2d 211, 217-18 (Fla.
2007). A court is not allowed to look at the specific facts of the case,
but can only look to the statute itself to determine if the crime can
be committed without the use of threat of physical force or violence.
Id. at 216. Since a battery can be committed merely by the
intentional touching of another person, which may not involve the
use or threat of force or violence, the crime of burglary of a
conveyance with assault or battery can be committed without the
use or threat of physical force or violence. See Ellis v. State, 135
So. 3d 478, 480 (Fla. 2d DCA 2014) (“[B]ecause burglary with
assault or battery encompasses the alternative of battery, which
includes the nonforce option of mere touching, that offense cannot
support      the      PRR         enhancement         under      section
775.082(8)(a)(1)(o).”) ; see also Suffield v. State, 132 So. 3d 333, 333
                      ∗

(Fla. 4th DCA 2014) (burglary with assault or battery does not
qualify for the PRR enhancement). Therefore, burglary of a
conveyance with assault and battery does not qualify under
subsection o. Accordingly, the conviction for burglary with assault
or battery does not qualify for the PRR designation.

    REVERSED and REMANDED to the trial court for resentencing.

MAKAR and JAY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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    ∗
      Section 775.082(8)(a)1.o. was renumbered in 1998 to
775.082(9)(a)1.o.

                                   2
Andy Thomas, Public Defender, and M.J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Julian E. Markham,
Assistant Attorney General, Tallahassee, for Appellee.




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