MELVIN A. RAGIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Melvin Ragin appeals his conviction and sentence for false imprisonment, burglary of an occupied conveyance, and grand theft. The appellate court affirmed the conviction but reversed his sentencing as a prison releasee reoffender (PRR) on the burglary charge because burglary of an occupied conveyance is not a qualifying PRR offense.
1) The hearsay error, if any, was harmless because it was cumulative to the victim's direct testimony. 2) The Department of Corrections affidavit was properly admitted under precedent. 3) Burglary of an occupied conveyance does not qualify as a PRR offense under Florida law and therefore the PRR sentencing enhancement must be reversed.
[1] An erroneously admitted hearsay statement is harmless error if it is cumulative of other evidence properly admitted.
[2] An affidavit from a state Department of Corrections official certifying a defendant's last release date from prison is admissible evidence.
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Join FLexlaw to unlock all legal intelligence“the legislature did not deem that burglary of an occupied conveyance was a serious enough offense to warrant inclusion in the PRR”
Establishes that burglary of an occupied conveyance is not a PRR qualifying offense under statutory interpretation
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Join FLexlaw to unlock all legal intelligenceRagin was convicted by jury trial of false imprisonment, burglary of an occupied conveyance, and grand theft. At trial, the victim testified regarding…
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SHAHOOD, J.
This is an appeal by Melvin A. Ragin from his conviction and sentence on the chai'ges of false imprisonment, burglary of an occupied conveyance, and grand theft following a jury trial. He raises three issues on appeal. We affirm the first two issues argued, reverse the final issue raised, and remand for resentencing.
As his first issue, appellant argues the trial court abused its discretion and reversibly erred in allowing into evidence inadmissible hearsay. Specifically, appel lant argues that it was error for the State to ask and for the court to allow one of the police officers involved to testify as to the description of who he was looking for based on the BOLO issued. In this case, the victim testified as to the identity and the description of appellant.
As a result, the hearsay statement deemed erroneously admitted is cumulative in nature and therefore the error, if any, is harmless. See, e.g., Miles v. State, 839 So. 2d 814, 819 (Fla. 4th DCA 2003) (police officer’s statement as to what a witness told him was harmless because the witness testified to the same account and description just prior); Caruso v. State, 645 So. 2d 389, 395 (Fla.1994); Presley v. State, 839 So. 2d 813 (Fla. 4th DCA 2003). We, therefore, affirm as to this issue.
Appellant argues in the second issue that the trial court reversibly erred in admitting an affidavit of an official of the State of Florida, Department of Corrections certifying the last release date of appellant from prison. Appellant argues that such admission was (a) inadmissible hearsay, and (b) violated his right to confrontation.
We affirm as to this issue based on Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006), and Corker v. State, 937 So. 2d 757 (Fla. 4th DCA 2006). As in Yisrael and Corker we also certify conflict with Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005).
Finally, appellant argues the trial court committed error in sentencing him as a prison releasee reoffender (PRR) on the charge and conviction of burglary of an occupied conveyance. He argues that burglary of an occupied conveyance did not qualify as a PRR qualifying offense because the jury in this case did not find that appellant used or threatened to use force or violence against an individual. We agree.
The enumerated offenses under section 775.082(9)(a)1, Florida Statutes, do not include a burglary of an occupied conveyance. State v. Huggins, 744 So. 2d 1215, 1216 (Fla. 4th DCA 1999) (en banc) (“the legislature did not deem that burglary of an occupied conveyance was a serious enough offense to warrant inclusion in the PRR”); see also Sampson v. State, 798 So. 2d 824, 826 (Fla. 3d DCA 2001) (burglary of an occupied conveyance without an assault did not qualify a defendant as a PRR because it was not an offense cited under the PRR statute, nor did it qualify as a felony that involved the use or threat of physical force or violence against an individual because the jury specifically found that it was committed without an assault).
Because a burglary of an occupied conveyance was not an offense listed under the PRR statute and the jury did not specifically find that it involved the use or threat of physical force or violence against an individual, the sentence is reversed and remanded for resentencing in accordance with this opinion.
Affirmed in Part, Reversed in Part, and Remanded for Resentencing.
STONE and HAZOURI, JJ., concur.
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Jovan Lamb v. State, 32 So. 3d 117 (Fla. 2d DCA 2009)…65 (Fla. 3d DCA 2008) (“False imprisonment is not an enumerated felony under subparagraph 775.082(9)(a)[ (]1[) ].”). We agree with the Third and Fourth Districts on this question. The State urges this court to apply the reasoning in Ragin v. State, 939 So. 2d 330 (Fla. 4th DCA 2006). In Ragin, the Fourth District held that a PRR sentence could not be imposed upon a conviction for burglary of an occupied conveyance because the burglary offense was listed as a qualifying offense in “the PRR statute and the jur…
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Tajhon Wilson v. State, 18 So. 3d 1262 (Fla. 3d DCA 2009)…PER CURIAM. Affirmed. See Ragin v. State, 939 So. 2d 330 (Fla. 4th DCA 2006), review dismissed, 946 So. 2d 1071 (Fla.2006); Sutton v. State, 909 So. 2d 292 (Fla. 3d DCA 2004), review denied, 917 So. 2d 195 (Fla.2005); Presley v. State, 839 So. 2d 813 (Fla. 4th DCA 2003); Miles v. State, 839 So. 2d 814 (Fl…
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Mays v. State (15th Cir. Ct. App. Div. 2015)…e implication testimony described above is thus erroneous, any error from admittance is harmless where the witness is testifying as to information provided by a separate witness who has already testified in the same trial. See, e.g., Ragin v. State, 939 So. 2d 330, 330 (Fla. 4th DCA 2006) (finding harmless error where police officer testified to BOLO description after victim had already testified to that same description); Miles v. State, 839 So. 2d 814, 819 (Fla. 4th DCA 2003) (finding harmless error where w…
Authorities Cited
- Mitchell v. State, 938 So. 2d 546 (Fla. 4th DCA 2006)
- Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005)
- State v. Huggins, 744 So. 2d 1215 (Fla. 4th DCA 1999)
- Caruso v. State, 645 So. 2d 389 (Fla. 1994)
- Shawon Miles v. State, 839 So. 2d 814 (Fla. 4th DCA 2003)
- Sampson v. State, 798 So. 2d 824 (Fla. 3d DCA 2001)
- Presley v. State, 839 So. 2d 813 (Fla. 4th DCA 2003)
- Corker v. State, 937 So. 2d 757 (Fla. 4th DCA 2006)