MICHAEL ROBINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the burglary conviction but reversed the Prison Releasee Reoffender sentence because the burglary offense was not a predicate crime for PRR sentencing as defined by statute. The court remanded for resentencing under the Habitual Felony Offender statute.
Defendant was convicted of burglary of an unoccupied dwelling and sentenced as both a Prison Releasee Reoffender (PRR) and a Habitual Felony Offender …
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FARMER, J.
Defendant was convicted of burglary of a dwelling in violation of section 810.02(l)(3)(b). § 810.02(l)(3)(b), Fla. Stat. (1997). We affirm the conviction. The trial court sentenced defendant to 15 years as both a Prison Releasee Reoffender (PRR) and as a Habitual Felony Offender (HFO). We reverse the PRR sentence.
Section 775.082(8) defines a “Prison re-leasee reoffender” as anyone who commits or attempts to commit, among other enumerated crimes, “burglary of an occupied [e.s.] structure or dwelling” within three years of being released from a state correctional facility. § 775.082(8)(a)l.q. (1997) (“Burglary of an occupied structure or dwelling”).
The precise charge against defendant was under section 810.02(3)(b), which specifies that “there is not another person in the dwelling at the time the offender enters or remains.... ” Burglary under section 810.02(3)(b) is not one of the specified predicate crimes for sentencing as a PRR under section 775.082(8)(a)l.q., which specifies that the dwelling or structure be occupied. In other words, it is apparent to us that the PRR statute as then drafted limits the enhanced sentencing as a PRR to those burglaries that involve a structure occupied by people.
In this case the minimum mandatory sentence under HFO applicable to defendant was 10 years, while the minimum mandatory sentence under PRR that the trial court thought applicable to defendant was 15 years. Even though a sentence of 15 years under HFO was legally possible, we have no way of knowing whether the trial court imposed the 15 year sentence because it was the mandated minimum sentence under PRR. We therefore remand for resentencing as a habitual felony offender. STEVENSON and HAZOURI, JJ., concur
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Brooks v. State, 764 So. 2d 676 (Fla. 4th DCA 2000)…he Prison Releasee Reoffender Act, sentencing under an improper statute that imposes harsher punishment than would be applied under the proper statute is fundamental error. Salters v. State, 758 So. 2d 667 (Fla.2000). As we did in Robinson v. State, 766 So. 2d 283 (Fla. 4th DCA 2000), we therefore reverse defendant’s PRR sentence because burglary of an unoccupied dwelling is not one of the qualifying offenses for such sentencing. CONVICTION AFFIRMED; REMANDED FOR RESENTENCING. KLEIN and STEVENSON, JJ., co…