JEROME ELLINGTON, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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The trial court erred by failing to sentence the appellant as a prison releasee reoffender, as this is mandatory under statute.
Jerome Ellington was convicted of felony battery. The trial court found he qualified as a prison releasee reoffender but believed it had discretion in…
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We affirm Jerome Ellington’s appeal of his judgment of conviction for felony battery. As to the issue raised on cross-appeal, however, we hold that the trial court erred when it failed to sentence appellant as a prison releasee reoffender. As a result, we vacate the sentence and remand for resentencing.
It is well-settled that, once the State proves by a preponderance of the evidence that a defendant qualifies as a prison releasee reoffender, the trial court must sentence the defendant in accordance with the provisions of section 775.082(9), Florida Statutes. See State v. Cotton, 769 So.2d 345 (Fla.2000); Johnson v. State, 766 So.2d 480, 481-82 (Fla. 5th DCA 2000). A trial court does not have discretion to depart from the sentence mandated by sec*1132tion 775.082(9), and the refusal to impose the mandatory minimum sentence is error as a matter of law. See State v. Garcia, 923 So.2d 1186 (Fla. 3d DCA 2006); State v. Smith, 832 So.2d 249 (Fla. 5th DCA 2002).
Appellant’s conviction for felony battery for intentionally touching or striking another against her will causing great bodily harm, permanent injury or permanent disfigurement qualified appellant for sentencing as a prison releasee reoffender. See Brooks v. State, 93 So.3d 402 (Fla. 2d DCA 2012). Indeed, the record reflects that the defense acknowledged and that the trial court found that appellant qualified for sentencing as a prison releasee reoffender. Yet, the trial court believed it had discretion as to whether appellant was so sentenced. As noted, the trial court did not possess such discretion. Garcia; Smith.
Accordingly, the sentence is vacated, and the cause is remanded for resentenc-ing consistent with this opinion.
VAN NORTWICK, CLARK, and RAY, JJ., concur.
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Reese v. State, 274 So. 3d 527 (Fla. 1st DCA 2019)…properly denied because Reese cannot show prejudice since the trial court was required to impose a life sentence for the burglary under the PRR statute irrespective of any mitigating evidence that might have been presented. See Ellington v. State, 96 So. 3d 1131, 1131-32 (Fla. 1st DCA 2012) (“It is well-settled that, once the State proves by a preponderance of the evidence that a defendant qualifies as a [PRR], the trial court must sentence the defendant in accordance with the provisions of section 775.082(…
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Harris v. State, 197 So. 3d 630 (Fla. 2d DCA 2016)…33 (Fla. 2d DCA 2006); O’Neal v. State, 862 So. 2d 91 (Fla. 2d DCA 2003); Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002); Cook v. State, 816 So. 2d 773 (Fla. 2d DCA 2002); Anderson v. State, 779 So. 2d 345 (Fla. 2d DCA 2000); Ellington v. State, 96 So. 3d 1131 (Fla. 1st DCA 2012); Ives v. State, 993 So. 2d 117 (Fla. 4th DCA 2008); Rangel v. State, 937 So. 2d 1218 (Fla. 3d DCA 2006); State v. Garcia, 923 So. 2d 1186 (Fla. 3d DCA 2006); Johnson v. State, 917 So. 2d 1011 (Fla. 4th DCA 2006); Clayton v. State…
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Canady v. State, 246 So. 3d 293 (Fla. 2d DCA 2017)…PER CURIAM. Affirmed. See McDonald v. State, 957 So. 2d 605 (Fla. 2007) ; Knight v. State, 808 So. 2d 210 (Fla. 2002) ; Ellington v. State, 96 So. 3d 1131 (Fla. 1st DCA 2012) ; State v. Garcia, 923 So. 2d 1186 (Fla. 3d DCA 2006) ; State v. Newmones, 765 So. 2d 860 (Fla. 5th DCA 2000). KELLY, VILLANTI, and MORRIS, JJ., Concur.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Cotton, 769 So. 2d 345 (Fla. 2000)
- Brooks v. State, 93 So. 3d 402 (Fla. 2d DCA 2012)
- Magwood v. State, 923 So. 2d 1186 (Fla. 1st DCA 2006)
- State v. Garcia, 923 So. 2d 1186 (Fla. 3d DCA 2006)
- Donel Johnson v. State, 766 So. 2d 480 (Fla. 5th DCA 2000)
- Moore v. State, 832 So. 2d 249 (Fla. 5th DCA 2002)
- State v. Smith, 832 So. 2d 249 (Fla. 5th DCA 2002)