GREGORY WHITEN, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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The court held that the Prison Releasee Reoffender Act applies to burglary of an unoccupied dwelling, and that a prosecutor's statement in closing argument did not improperly bolster police credibility.
[1] A prosecutor's statement in closing argument that police are not interested in arresting the wrong person, made in response to defense counsel's argument suggesting polic…
[2] The Prison Releasee Reoffender Act applies to the crime of burglary of an unoccupied dwelling, even if the dwelling was not occupied at the time of the burglary.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of burglary of an unoccupied dwelling. The state cross-appealed the trial court's finding that the Prison Releasee Reoffen…
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PLEUS, J.
Gregory Whiten claims the court erred in denying his motion for a mistrial. We find no error and affirm the trial judge’s ruling that the prosecutor’s statement1 in closing argument did not bolster the credibility of the police officer. If anything, the statement was harmless error and amounted to little more than rebuttal to defense counsel and his closing argument.
The state has cross-appealed and argues that the trial court erred in finding that the Prison Releasee Reoffender Act (“PRRA”) was inapplicable to the crime of burglary of an unoccupied dwelling. Factually, the record clearly establishes the residence was unoccupied at the time of the entry by the defendant. The owners and occupants pulled into the driveway as the defendant was leaving with his loot. The first and second districts have held that for the PRRA to apply, a dwelling does not have to be occupied at the time of the burglary because occupation is not an element of the offense of burglary of a dwelling. See Medina v. State, 758 So. 2d 113 (Fla. 2d DCA), rev. granted, 760 So. 2d 947 (Fla.2000); Foresta v. State, 751 So. 2d 738 (Fla. 1st DCA), rev. granted, No. SC00-428, 767 So. 2d 456 (Fla. May 23, 2000). See also Perkins v. State, 682 So. 2d 1083, 1084-85 (Fla.1996). The fourth has held to the contrary. See State v. Huggins, 744 So. 2d 1215 (Fla. 4th DCA 1999), rev. granted, 761 So. 2d 332 (Fla.2000). The issue is currently before the supreme court.
We agree with the first and second districts and adopt their opinions and rationales for our holding that the dwelling need not be occupied at the time of the burglary.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
HARRIS and SAWAYA, JJ„ concur. . The prosecutor's statement that the "police are not interested in arresting the wrong person,” was rebuttal argument to defense counsel's suggestion that it was not believable that the police officer would have shown the witnesses a photo lineup and not hinted to them which photo they were supposed to pick out.
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Citator
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State v. Huggins, 802 So. 2d 276 (Fla. 2001)…tate v. White, 736 So. 2d 1231 (Fla. 2d DCA 1999), and cases that followed in that district, the First District in Foresta v. State, 751 So. 2d 738 (Fla. 1st DCA), review granted, 767 So. 2d 456 (Fla.2000), and the Fifth District in Whiten v. State, 765 So. 2d 309 (Fla. 5th DCA 2000). LEWIS, J., concurs.…
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State v. Mickey Michael Clark, 780 So. 2d 977 (Fla. 5th DCA 2001)…; Hunter v. State, 751 So. 2d 181 (Fla. 2d DCA), rev. granted, 767 So. 2d 457 (Fla.2000); Medina v. State, 751 So. 2d 138 (Fla. 2d DCA), rev. granted, 760 So. 2d 947 (Fla.2000); State v. White, 736 So. 2d 1231 (Fla. 2d DCA 1999). . Whiten v. State, 765 So. 2d 309 (Fla. 5th DCA 2000).…
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State v. Anderson Well Harris, 783 So. 2d 371 (Fla. 5th DCA 2001)…05 (Fla.1918); Westfield Ins. Co. v. Sloan, 671 So. 2d 881 (Fla. 5th DCA 1996). The appellate courts were divided on the resolution of whether the PRR could be used to enhance a sentence for burglary of an unoccupied dwelling. See Whiten v. State, 765 So. 2d 309 (Fla. 5th DCA 2000); Foresta v. State, 751 So. 2d 738 (Fla.App. 1st DCA 2000), review granted, 767 So. 2d 456 (Fla.2000); State v. Huggins, 744 So. 2d 1215 (Fla. 4th DCA 1999); State v. White, 736 So. 2d 1231 (Fla. 2d DCA 1999). But the Florida Supr…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Huggins, 744 So. 2d 1215 (Fla. 4th DCA 1999)
- Houston D. Perkins v. State, 682 So. 2d 1083 (Fla. 1996)
- Newcomb v. Anne Pennoyer Newcomb, 751 So. 2d 738 (Fla. 1st DCA 2000)
- Medina v. State, 758 So. 2d 113 (Fla. 2d DCA 2000)