JERRY SWIGGUM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerry Swiggum appealed his sentences for burglaries, dealing in stolen property, and grand theft, challenging the imposition of prison releasee reoffender (PRR) and habitual offender (HFO) enhancements. The court reversed and remanded because the PRR sentences for burglary lacked evidence of dwelling occupancy (required under controlling precedent), the HFO sentences were invalid and not orally announced, and the sentences for dealing in stolen property and grand theft did not match the legal requirements for the sentencing schemes imposed.
The court held that all of Swiggum's sentences were invalid or required modification. The PRR sentences for burglary must be remanded for resentencing because occupancy of the dwelling was not proven. The HFO sentences were invalid because they violated the Prison Releasee Reoffender Punishment Act and were not orally announced. The PRR sentence for dealing in stolen property was invalid because that crime does not qualify for PRR sentencing. The PRR sentence for grand theft was invalid for the same reason, though the HFO sentence for grand theft was legal.
[1] A motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b) is presumed denied if the circuit court fails to rule on it, thereby preserving alleged errors for…
[2] A prison releasee reoffender sentence for burglary requires evidence that the burgled dwelling was occupied at the time of the offense.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“At the time of his crimes, a PRR sentence could be imposed only if the burggled dwelling was occupied. State v. Huggins, 802 So.2d 276 (Fla.2001). The State did not present evidence of occupancy, but at the time of Swiggum's sentencing, Huggins had not been decided.”
Establishes the requirement that PRR sentences for burglary require proof of occupancy and that the State failed to meet this burden.
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Join FLexlaw to unlock all legal intelligenceSwiggum pleaded guilty to burglaries of two dwellings (committed in May and June 1998), dealing in stolen property, and grand theft. He was sentenced …
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NORTHCUTT, Judge.
Jerry Swiggum challenges the sentences imposed after he pleaded guilty to burglaries of two dwellings, dealing in stolen property, and grand theft. He filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b), raising these errors with the circuit court. Because the court never ruled on his motion, it is presumed denied. Fla. R.Crim. P. 3.800(b)(1)(B). Therefore, Swiggum has preserved the alleged errors for appeal.
Swiggum was sentenced as a prison releasee reoffender and a habitual offender for the two burglaries. These offenses were committed in May and June 1998. At the time of his crimes, a PRR sentence could be imposed only if the burgled dwelling was occupied. State v. Huggins, 802 So. 2d 276 (Fla.2001). The State did not present evidence of occupancy, but at the time of Swiggum’s sentencing, Huggins had not been decided. We therefore remand for a new sentencing hearing under the procedure adopted in Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001). The court should review the record to determine whether it supports a finding that the dwelling was occupied. If the record is unclear, the court may conduct a limited evidentiary hearing on this issue. If the evidence supports a finding of occupancy, the court may resentence Swiggum as a PRR. The habitual offender sentences imposed for the burglaries are invalid for two reasons. First, Grant v. State, 770 So. 2d 655, 659 (Fla.2000), held that sentencing a defendant to concurrent, equal terms as a habitual offender and a prison releasee reoffender violated the Prison Re-leasee Reoffender Punishment Act; second, the court did not orally announce the HFO sentences.
Swiggum’s sentence for dealing in stolen property cannot stand for two reasons. First, the written sentence does not comport with the court’s oral pronouncement of sentence. The court stated it was sentencing Swiggum as a prison releasee reoffender, but the written document reflects a violent career criminal sentence. Dealing in stolen property is not an enumerated offense under either of these sentencing schemes. §§ 775.082(8)(a)(l), .084(l)(c), Fla. Stat. (1997). As such, this sentence is invalid. Second, the court also sentenced Swiggum as a habitual offender for this crime. The fifteen-year sentence the court imposed is legal, but the minimum mandatory term is not. § 775.084(4)(a). However, again, the court did not orally announce this sentence.
The State points out that, as part of his plea bargain, Swiggum agreed to be sentenced as a PRR for the burglaries and the charge of dealing in stolen property. Because the agreement cannot be enforced, at least as to the latter charge, the State should be given the option of invali dating the plea or agreeing to sentences without the PRR enhancement. Caddo v. State, 806 So. 2d 520 (Fla. 2d DCA 2001).
We also note that on the grand theft counts, the written sentence differs from the court’s oral pronouncement. The court orally imposed a ten-year HFO sentence. § 775.084(4)(a)(3). This sentence is legal. But according to the written documents, Swiggum was sentenced to fifteen years as a PRR. The crime of grand theft does not qualify for PRR sentencing. § 775.082(8)(a)(l). Whether the State chooses to invalidate the plea agreement or abide by it, this sentence must be corrected.
Reversed and remanded.
STRINGER and SILBERMAN, JJ„ concur.
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Citator
Cited By
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Ross v. State, 901 So. 2d 252 (Fla. 4th DCA 2005)…the legislative amendment, which removed the requirement. We reversed because it was apparent on the face of the record that the jury did not make an express finding that the structure was occupied. Saunders, 823 So. 2d at 830. In Swiggum v. State, 843 So. 2d 1041 (Fla. 2d DCA 2003),-prior to Huggins, the appellant pled guilty to burglary of two dwellings and was sentenced as a PRR. The Second District reversed, concluding that the state did not present evidence of occupancy. Id. Applying what is now settled…
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Williamson v. State, 988 So. 2d 1240 (Fla. 5th DCA 2008)…which is not a qualifying offense under the PRR statute. See [*1242] § 775.082(9)(a)(l)(q); Hanna v. State, 898 So. 2d 1200 (Fla. 5th DCA 2005). An agreement to be sentenced as a PRR on a non-qualifying offense cannot be enforced. Swiggum v. State, 843 So. 2d 1041 (Fla. 2d DCA 2003). Because it cannot be determined on the record whether Williamson pled to burglary of an occupied or an unoccupied structure, we remand for attachment of those portions of the record conclusively establishing that Williamson is n…
Authorities Cited
- Grant v. State, 770 So. 2d 655 (Fla. 2000)
- State v. Huggins, 802 So. 2d 276 (Fla. 2001)
- Caddo v. State, 806 So. 2d 520 (Fla. 2d DCA 2001)
- Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001)