EDWARD BERNARD ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We grant appellant’s motion for rehearing, withdraw our opinion filed March 28, 2008, and issue this corrected opinion in its stead.
The appellant appeals the trial court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The second claim, that he was not properly charged by the state, is conclusively refut ed by the record, and we affirm the trial court’s denial of this claim. The appellant also argues that his two five-year sentences imposed for two convictions of battery on a law enforcement officer may not be enhanced by sentencing him as a prison releasee reoffender (“PRR”) because the offenses do not constitute forcible felonies. The appellant’s claim has merit. See State v. Hearns, 961 So. 2d 211 (Fla.2007); Witt v. State, 387 So. 2d 922 (Fla.1980) (changes that place beyond the authority of the state the power to impose certain penalties are to apply retroactively); Johns v. State, 971 So. 2d 271 (Fla. 1st DCA 2008). We therefore reverse and remand for resentencing.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
BENTON, LEWIS, and ROBERTS, JJ., concur.
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Citator
Cited By
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Kirkland v. State, 71 So. 3d 254 (Fla. 2d DCA 2011)…ot listed in section 775.082(9)(a)(l), Florida Statutes (2008). Kirkland further alleged that BOLEO is not enumerated in the PRR statute and does not constitute a forcible felony. See State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007); Allen v. State, 984 So. 2d 656, 657 [*255] (Fla. 1st DCA 2008). As such, Kirkland claimed that his PRR treatment in counts three through six amounted to an illegal sentence and that a defendant cannot assent to an illegal sentence. See Gregory v. State, 997 So. 2d 1287, 1288 (Fla…
Authorities Cited
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- Johns v. State, 971 So. 2d 271 (Fla. 1st DCA 2008)