Fred Somers v. United States

Supreme Court of Florida
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No. SC21-1407
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FRED SOMERS,
Appellant,

vs.

UNITED STATES OF AMERICA,
Appellee.

November 17, 2022

CANADY, J.

This Court has for review two questions of Florida law certified

by the United States Court of Appeals for the Eleventh Circuit in

Somers v. United States, 15 F.4th 1049, 1056 (11th Cir. 2021),

regarding an element of Florida’s assault statute, section

784.011(1), Florida Statutes. We have jurisdiction. See art. V,

§ 3(b)(6), Fla. Const.

I. BACKGROUND AND CERTIFIED QUESTIONS

In 2013, Fred Somers pleaded guilty to a federal indictment

charging possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1). Based on his four prior “violent felony”

convictions, the district court determined that Somers should be

sentenced to enhanced penalties under the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e), and imposed a sentence of 211

months’ imprisonment. 1 Critical to the district court’s imposition of

the ACCA-enhanced sentence was its conclusion that Somers’s

1998 Florida conviction for aggravated assault with a deadly

weapon under section 784.021(1)(a), Florida Statutes (1997),

qualifies as a “violent felony” under the ACCA.

Somers appealed his federal conviction and sentence for

possession of a firearm by a convicted felon, and the Eleventh

Circuit affirmed. United States v. Somers, 591 F. App’x 753 (11th

Cir. 2014). In 2016, Somers filed a collateral challenge to his

enhanced sentence under 28 U.S.C. § 2255. He argued, inter alia,

that his Florida aggravated assault conviction was not a “violent

1. Under the ACCA, a defendant who unlawfully possesses a
firearm and has three prior convictions for either “serious drug
offenses” or “violent felonies” is subject to enhanced penalties.
Specifically, a ten-year maximum sentence becomes a fifteen-year
mandatory minimum sentence with a statutory maximum term of
life. 18 U.S.C. § 924(e)(1).

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felony” under the ACCA because it lacked the requisite mens rea.

At the time, Eleventh Circuit precedent foreclosed Somers’s

argument, which resulted in the district court denying his motion.

Nonetheless, the district court granted a certificate of appealability,

concluding that “reasonable jurists could disagree on whether

aggravated assault under Florida law is a violent felony under the

element[s] clause” of the ACCA. United States v. Somers, 4:12CR6-

RH-MJF, 2019 WL 1236055, at *3 (N.D. Fla. Mar. 18, 2019), aff’d,

799 Fed. Appx. 691 (11th Cir. 2020), vacated and superseded on

reh’g, 15 F.4th 1049. To qualify as a violent felony under the

elements clause of the ACCA, the predicate conviction must have

“as an element, the use, attempted use, or threatened use of

physical force against the person of another.” 18 U.S.C.

§ 924(e)(2)(B).

On appeal to the Eleventh Circuit, Somers maintained that the

Florida offense of aggravated assault is not a “violent felony” under

the ACCA because it can be committed recklessly and therefore

does not satisfy the elements clause. The Eleventh Circuit initially

affirmed the district court’s denial of the § 2255 motion based on its

prior precedent in Turner v. Warden Coleman FCI, 709 F.3d 1328,

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1337-38 (11th Cir. 2013), abrogated on other grounds by Johnson v.

United States, 576 U.S. 591 (2015), concluding that a Florida

aggravated assault was a “violent felony” because “by its definitional

terms,” its first element—a simple assault—included an intentional

and unlawful threat “to do violence” to the person of another.

Somers v. United States, 799 F. App’x 691, 692 (11th Cir. 2020).

Somers filed a petition for rehearing in which he asked the

Eleventh Circuit to revisit its precedent. In June 2021, while the

petition for rehearing was still pending, the United States Supreme

Court issued its opinion in Borden v. United States, 141 S. Ct. 1817,

1821-22, 1834 (2021) (plurality), holding that a crime that requires

only a mens rea of recklessness cannot qualify as a “violent felony”

as defined by the ACCA’s elements clause.

After supplemental briefing by the parties regarding whether a

Florida aggravated assault conviction still qualifies as an ACCA

predicate conviction in light of Borden, the Eleventh Circuit granted

Somers’s petition for rehearing and certified the following two

questions of Florida law to this Court:

1. Does the first element of assault as defined in Fla.
Stat. § 784.011(1) -- “an intentional, unlawful threat by

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word or act to do violence to the person of another” --
require specific intent?

2. If not, what is the mens rea required to prove that
element of the statute?

Somers, 15 F.4th at 1056.2

Before we can answer the certified questions, we must clarify

what is being asked. For the most part, the parties interpret the

first certified question as simply asking, “Is assault a specific intent

crime in Florida?” “Specific intent is most commonly understood as

‘designat[ing] a special mental element which is required above and

beyond any mental state required with respect to the actus reus of

2. The reason the Eleventh Circuit is asking about simple
assault rather than aggravated assault—which is the predicate
felony at issue—is because

[t]o decide whether an offense satisfies the elements
clause, courts use the categorical approach. . . . The
focus is . . . on whether the elements of the statute of
conviction meet the federal standard. Here, that means
asking whether a state offense necessarily involves the
defendant’s “use, attempted use, or threatened use of
physical force against the person of another.” If any—
even the least culpable—of the acts criminalized do not
entail that kind of force, the statute of conviction does
not categorically match the federal standard, and so
cannot serve as an ACCA predicate.

Borden, 141 S. Ct. at 1822 (citations omitted).

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the crime.’ ” Somers, 15 F.4th at 1053 (quoting 1 Wayne R. LaFave,

Substantive Criminal Law § 5.2(e) (3d ed. 2017)). But the

Government correctly recognizes that whether Florida assault is a

specific- or general-intent crime “is largely beside the point.”

Amended Response Br. of Appellee at 17. Indeed, if the Eleventh

Circuit were simply asking whether assault in Florida is a specific

intent crime, as that phrase is most commonly understood, the

answer would do nothing to help the Eleventh Circuit determine

whether Somers’s Florida aggravated assault conviction qualifies as

a “violent felony” under the ACCA’s elements clause. Further, the

most common understanding of “specific intent” is not the only way

in which the phrase is understood or used. “Specific intent” may be

used “to denote an intent to do [a specific act] at a particular time

and place,” LaFave, supra, § 5.2(e); that is, “intentionally engag[ing]

in specific conduct,” id. at § 5.2(a). As the Eleventh Circuit

recognizes, “specific intent” can also mean “[t]he intent to

accomplish the precise criminal act that one is later charged with.”

United States v. Ortiz, 318 F.3d 1030, 1036 n.10 (11th Cir. 2003)

(quoting Black’s Law Dictionary 814 (Deluxe 7th ed. 1999)). To

discern what the Eleventh Circuit is actually asking in the first

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certified question, we look to the United States Supreme Court’s

opinion in Borden, 141 S. Ct. 1817—which was the catalyst for the

certified questions—and then to what the Eleventh Circuit said in

Somers.

In Borden, the Supreme Court held that the phrase “use . . .

against the person of another” in the ACCA’s elements clause “sets

out a mens rea requirement—of purposeful or knowing conduct.”

141 S. Ct. at 1828, 1829 n.6. It also stated that the elements

clause “demands that the perpetrator direct his action at, or target,

another individual.” Id. at 1825. A crime that can be committed

with a mens rea of mere recklessness therefore cannot qualify as a

crime of violence under the elements clause because “[r]eckless

conduct is not aimed in [the] prescribed manner.” Id.; see also id.

at 1833 (“ ‘[A]gainst the person of another,’ when modifying the ‘use

of physical force,’ introduces that action’s conscious object. So it

excludes conduct, like recklessness, that is not directed or targeted

at another.” (citation omitted)). It should be noted that the term

“specific intent” is not found in the Borden opinion. That term did

not become prominent in Somers’s proceedings until Somers

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included it in the supplemental briefing that was ordered by the

Eleventh Circuit in the wake of Borden.

In Somers, the Eleventh Circuit explained that

the elements clause [of the ACCA] requires both the
general intent to volitionally take the action of using,
attempting to use, or threating to use force and
something more: that the defendant direct the action at a
target, namely another person. Specific intent to direct
action at another satisfies this latter requirement, as does
“knowing conduct.” Borden, 141 S. Ct. at 1828 (holding
that the elements clause’s “against the person of another”
phrase “sets out a mens rea requirement -- of purposeful
or knowing conduct”).
Thus, if Florida aggravated assault requires a mens
rea of specific intent to use, attempt to use, or threaten
to use physical force against the person of another, then
Florida aggravated assault qualifies as an ACCA violent
felony predicate and Somers’s ACCA-enhanced sentence
must stand.

Somers, 15 F.4th at 1053-54 (emphasis added) (footnote omitted).

Thus, it is clear that the Eleventh Circuit is not actually

concerned with whether Florida assault is a specific intent crime as

that phrase is most commonly understood; rather, the court is

asking whether the first element of section 784.011 requires specific

intent to direct the prohibited action (a threat to do violence) at

another. Asking whether the first element of a crime requires

specific intent to direct action is different than asking whether the

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crime is a specific intent crime. We therefore rephrase the first

certified question as:

Does the first element of the assault statute, section
784.011(1), require not just the general intent to
volitionally take the action of threatening to do violence
but also that the actor direct the threat at a target,
namely another person?

II. ANALYSIS

Section 784.011(1), Florida Statutes, defines “assault” 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.” The statute thus requires

proof of three elements: (1) an intentional, unlawful threat by word

or act to do violence to the person of another; (2) an apparent ability

to carry out the threat; and (3) creation of a well-founded fear that

the violence is imminent.

To answer the rephrased first certified question, we need not

look further than the plain language of section 784.011(1), which

confirms that assault does require what the Somers court refers to

as “specific intent” to direct action at another. The act that section

784.011(1) prohibits (when the second and third elements also

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exist, of course) is an intentional threat to do violence to another

person. It is important to clearly understand what is meant by the

words “threat” and “violence” in the statute.

“Where, as here, the [L]egislature has not defined the words

used in a [statute], the language should be given its plain and

ordinary meaning.” Debaun v. State, 213 So. 3d 747, 751 (Fla.

2017) (alterations in original) (quoting Sch. Bd. of Palm Beach Cnty.

v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009)).

“When considering the [plain] meaning of terms used in a statute,

this Court looks first to the terms’ ordinary definitions[, which] . . .

may be derived from dictionaries.” Id. (alterations in original)

(quoting Dudley v. State, 139 So. 3d 273, 279 (Fla. 2014)). Because

the Legislature did not define “threat” or “violence” in chapter 784,

we will refer to dictionaries in order to ascertain the plain and

ordinary meanings of the terms.

The 1972 edition of Webster’s Seventh New Collegiate

Dictionary, which was published not long before the 1974

enactment of section 784.011, defines “threat” as “an expression of

intention to inflict evil, injury, or damage.” Webster’s Seventh New

Collegiate Dictionary 920 (1972). Similarly, the American Heritage

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Dictionary New College Edition of 1979 defines “threat” as “[a]n

expression of an intention to inflict pain, injury, evil, or punishment

on a person or thing.” American Heritage Dictionary New College

Edition 1340 (1979). The definition in the contemporaneous Black’s

Law Dictionary is consistent. It defines a “threat” as “[a]

communicated intent to inflict physical or other harm on any

person or on property.” Threat, Black’s Law Dictionary (5th ed.

1979). The use of the term “threat” in the assault statutes thus

targets a specific type of conduct: an “expression” of an intent or a

“communicated intent” to do violence to another.

The term “violence” also has a clear meaning: the use of

physical force to cause harm. See American Heritage Dictionary

New College Edition 1431 (defining “violence” as “[p]hysical force

exerted for the purpose of violating, damaging, or abusing”);

Webster’s Seventh New Collegiate Dictionary 993 (defining “violence”

as “exertion of physical force so as to injure or abuse”). In section

784.011(1), the “violence” is specifically limited “to the person of

another,” so for the purposes of the statute, “violence” means “the

use of physical force to harm another’s person.” Section 784.011(1)

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therefore prohibits an intentional expression of an intent to use

physical force to harm another’s person.

Given the plain language of section 784.011(1), the statute

simply cannot be violated without the actor “direct[ing] his action

at[] or target[ing] another individual.” Whether or not section

784.011(1) requires “specific intent” under any particular

understanding of that term, it certainly demands the intentional

directing of action or “[s]pecific intent to direct action at another” to

which Somers refers. This is especially true considering that the

statute contemplates the existence of “such other person” who has

developed a well-founded fear that such violence is imminent as a

result of the threat. We therefore answer the rephrased first

certified question in the affirmative.

Because we have answered the first certified question—albeit

rephrased—in the affirmative, there is no need to address the

second question directly, though we believe our answer to the first

question essentially answers the second question anyway. Because

section 784.011(1) does require that the intentional threat to do

violence be directed at or targeted towards another individual, it is

“aimed in that prescribed manner” referred to by the Supreme

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Court in Borden, 141 S. Ct. at 1825, and therefore cannot be

accomplished via a reckless act. The fact that an assault cannot be

committed by a reckless act under Florida law means that a

violation of section 784.011(1) requires at least knowing conduct.

III. CONCLUSION

For the reasons explained, we answered the rephrased first

certified question in the affirmative and conclude that the first

element of Florida’s assault statute, section 784.011(1), requires not

just the general intent to volitionally take the action of threatening

to do violence, but also that the actor direct the threat at a target,

namely, another person. We therefore return this case to the

Eleventh Circuit Court of Appeals.

It is so ordered.

MUÑIZ, C.J., and POLSTON, LABARGA, COURIEL, GROSSHANS,
and FRANCIS, JJ., concur.

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

Certified Question of Law from the United States Court of Appeals
for the Eleventh Circuit – Case No. 19-11484

Joe DeBelder, Interim Federal Public Defender, Tallahassee,
Florida, and Megan Saillant, Assistant Federal Public Defender,
Gainesville, Florida,

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for Appellant

Jason R. Coody, United States Attorney, Tallahassee, Florida,
Robert G. Davies, Appellate Chief, Assistant United States Attorney,
Pensacola, Florida, and Jordane E. Learn, Assistant United States
Attorney, Northern District, Tallahassee, Florida,

for Appellee

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and
Rachel R. Siegel, Deputy Solicitor General, Tallahassee, Florida,

for Amicus Curiae State of Florida

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