FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-3286

_____________________________

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 
2

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 
3

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).
4

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-ofstate 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.

_____________________________

Justin Rashad Howard, pro se, Appellant.

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