Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Nos. 1D21-0033 1D21-0034 _____________________________ JOE NORMAN BYERS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Columbia County. Mark E. Feagle, Judge. December 15, 2021 LONG, J. Byers violated his probation and the trial court, pursuant to section 948.06(8), Florida Statutes (2020), designated him a violent felony offender of special concern (VFOSC). Byers first challenges that designation and the resulting sentence, arguing that the trial court incorrectly determined that his previous offense was a VFOSC qualifying offense. We agree, reverse, and remand for further proceedings. Byers also argues he is entitled to a mandatory modification of his probation pursuant to section 948.06(2)(f). We do not address this issue because the trial court did not rule on the question and it is therefore not properly before the Court. In 1997, Byers was convicted of lewd or lascivious assault upon a child pursuant to section 800.04, Florida Statutes (1996). Like today’s version of the statute, the 1996 version of section 800.04 contained numerous lewd or lascivious offenses. The 1996 version included most of the offenses that remain in the current version of the statute. But lewd or lascivious assault upon a child is no longer included in section 800.04. And as we see below, neither is it referenced in any part of the VFOSC statutory qualifications. Section 948.06(8)(c) sets out the qualifying offenses for designation as a VFOSC. Among the qualifying offenses are lewd or lascivious battery, molestation, conduct, or exhibition under 800.04. Each of those offenses were included in the 1996 version of the statute. But notably missing is Byers’ conviction—lewd or lascivious assault. The State argues that the conduct prohibited as lewd or lascivious assault in the 1996 statute is similar enough to the provisions in the current statute that we should consider it to be encompassed in the VFOSC designations. We are unconvinced. In 1996, lewd or lascivious assault was a crime under section 800.04(1). The crime was defined as an assault in a lewd, lascivious, or indecent manner upon a victim under the age of sixteen years. Fla. Std. Jury Instr. (Crim.) A-47 (1992); see also Standard Jury Instructions-Criminal Cases No. 92-1, 603 So. 2d 1175, 1178 (Fla. 1992). Assault is a legal term of art with a known and well-defined meaning. As a matter of law, the term identifies an offense separate and distinct from a lewd or lascivious battery, molestation, conduct, or exhibition. As used in the 1996 offense, assault was defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well- founded fear in such other person that such violence is imminent.” Id. Recognizing that a lewd or lascivious assault is a unique offense with its own elements, we then look to the qualifying offenses of section 948.06(8)(c) to see if those listed include an equivalent offense. But the term assault makes no appearance in the whole of the VFOSC statute, nor does any other legal term that shares its meaning. We cannot conclude that the legislature intended to include an offense that was plainly excluded. 2 The State also argues Byers’ underlying conduct should control rather than the conviction offense. Byers was originally charged with sexual battery and the record reflects that the underlying conduct supporting his conviction would be captured within the sections of 800.04 that qualify for VFOSC designation. But he entered a plea to the lesser offense of lewd or lascivious assault. The qualification for designation as a VFOSC is based on the offense for which he was convicted, not the underlying conduct. § 948.06(8)(b)2., Fla. Stat. (stating a violent felony offender of special concern means a person on felony probation who “has previously been convicted of a qualifying offense”) (emphasis added). Byers was incorrectly designated a violent felony offender of special concern. Byers’ previous conviction was not a qualifying offense under section 948.06(8)(c). We reverse his designation and the resulting sentence, and we remand for further proceedings. JAY and M.K. THOMAS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Jovona I. Parker, Assistant Attorney General, Tallahassee, for Appellee. 3