DAVID PARKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Parker appeals his conviction for burglary of a dwelling and his fifteen-year sentence under Florida's Prison Releasee Reoffender Punishment Act. The court affirms the conviction but vacates the sentence and remands for resentencing because the jury never made a factual finding regarding whether the dwelling was occupied, which is a prerequisite for enhanced sentencing under the Act.
A defendant cannot be sentenced under the Prison Releasee Reoffender Punishment Act for burglary of a dwelling unless the jury makes a factual finding that the dwelling was occupied. The Act encompasses only burglary of an occupied dwelling, not an unoccupied one.
[1] A prison releasee reoffender sentence for burglary of a dwelling cannot be imposed if the jury does not make a specific factual finding that the dwelling was occupied.
[2] The Prison Releasee Reoffender Punishment Act applies to burglary of an occupied dwelling but not to burglary of an unoccupied dwelling.
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Join FLexlaw to unlock all legal intelligence“In the absence of a factual finding concerning the occupancy of the dwelling, we are compelled to reverse Parker's prison releasee reoffender sentence.”
Establishes the core holding that occupancy must be affirmatively found by a jury to support enhanced sentencing
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Join FLexlaw to unlock all legal intelligenceParker was convicted of burglary of a dwelling. The evidence showed that the homeowner was in her yard when the burglary began and entered her home du…
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PER CURIAM.
David Parker appeals his conviction for burglary of a dwelling and the resulting fifteen-year sentence imposed pursuant to the Prison Releasee Reoffender Punishment Act as codified at section 775.082(8)(a), Florida Statutes (1997). We affirm Parker’s conviction without discussion. However, we vacate Parker’s prison releasee reoffender sentence and remand for resentencing.
Parker was charged with and convicted of burglary of a dwelling. The State likely chose to charge Parker with burglary of a dwelling, without specifying whether the dwelling was occupied or unoccupied, because either would have been at least a second-degree felony without regard to the occupancy of the dwelling at the time of the burglary. § 810.02(3)(a), (b), Fla. Stat. (1997). The evidence presented during Parker’s trial clearly demonstrated that the owner of the dwelling was in her yard at the inception of the burglary and she entered her home during the course of the burglary. Nonetheless, the verdict form did not afford the jury an opportunity to determine whether the dwelling1 was occupied and, consequently, the jury did not make that factual finding.
In the absence of a factual finding concerning the occupancy of the dwelling, we are compelled to reverse Parker’s prison releasee reoffender sentence. The supreme court has interpreted the Prison Releasee Reoffender Punishment Act to encompass burglary of an occupied dwelling but not burglary of an unoccupied dwelling. State v. Huggins, 26 Fla. L. Weekly S174, - So. 2d -, 2001 WL 278107 (Fla. Mar. 22, 2001). Thus, as explained in Weems v. State, 795 So. 2d 122 (Fla. 1st DCA 2001), where, in cases such as the present, a jury does not make a finding that the dwelling was occupied, burglary of a dwelling does not fall within the offenses enumerated in the Act. Accordingly, like the defendant in Weems, Parker could not be sentenced as a prison releasee reoffender pursuant to section 775.082(8)(a), Florida Statutes (1997).2
Affirmed in part, vacated in part, and remanded for resentencing.
PARKER, A.C.J., and ALTENBERND and SALCINES, JJ., Concur. . As defined in section 810.011(2), Florida Statutes (1997), the dwelling would include its curtilage.
. We note that this result is likely to apply to many cases involving the burglary of a dwelling for which a prison releasee reoffender sentence has been imposed prior to the supreme court’s decision in State v. Huggins, 26 Fla. L. Weekly S174, - So. 2d -, 2001 WL 278107 (Fla. Mar. 22, 2001), because neither the State nor the trial court would have appreciated the need for a special verdict form to resolve this factual issue which was immaterial under section 810.02(3), Florida Statutes (1997).
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Dudley v. State, 802 So. 2d 461 (Fla. 2d DCA 2001)…did not indicate that he was to be sentenced as a PRR. Because Dudley was found guilty of burglary of a dwelling, but the jury did not make a determination that the dwelling was occupied, Dudley could not be sentenced as a PRR. See Parker v. State, 799 So. 2d 282, (Fla. 2d DCA 2001). The fifteen-year term of imprisonment was nonetheless legal and not a departure sentence pursuant to the applicable provision of the criminal punishment code, section 921.002(1)(g), Florida Statutes (2000). See Willingham v. Sta…
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Christopher v. State, 821 So. 2d 1275 (Fla. 2d DCA 2002)…ristopher committed his offense. Under these circumstances, his offense did not qualify for PRRPA sentencing. Weems v. State, 795 So. 2d 122, 125 (Fla. 1st DCA 2001). See also Dudley v. State, 802 So. 2d 461, 462 (Fla. 2d DCA 2001); Parker v. State, 799 So. 2d 282, 283 (Fla. 2d DCA 2001). Affirmed in part; reversed in part and remanded for resentencing. SALCINES and KELLY, JJ., Concur.…
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McCOY v. State, 838 So. 2d 1211 (Fla. 2d DCA 2003)…ffender for the count one burglary. McCoy argues that the trial court erred when it imposed a prison releasee reoffen-der sentence for the burglary of an unoccupied dwelling. See Dudley v. State, 802 So. 2d 461 (Fla. 2d DCA 2001); Parker v. State, 799 So. 2d 282 (Fla. 2d DCA 2001). McCoy was not charged with burglary of an occupied dwelling, and the jury did not make a finding that the dwelling was occupied at the time of the burglary. The State concedes that McCoy could not be sentenced as a prison release…
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- Weems v. State, 795 So. 2d 122 (Fla. 1st DCA 2001)