FREDRICK COLSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2013-05-30
No. 1D12-0424
ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.
114 So. 3d 415 Florida District Court of Appeal, First District (2013) Caution
Cited by 4 cases

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Synopsis

Fredrick Colson was convicted of robbery and sentenced as a prison releasee reoffender (PRR) to 15 years. The First District Court of Appeal affirmed the conviction but reversed and remanded for resentencing because the State's evidence supporting the PRR designation relied on a date of temporary confinement rather than actual release from prison, which does not satisfy the three-year requirement for a PRR sentence.


Holding

The court affirmed Colson's robbery conviction but reversed and remanded for resentencing because the three-year PRR requirement was not satisfied, as the relevant date was temporary confinement, not actual release from a state correctional facility. The court also struck portions of the judgment for improper imposition of a discretionary fine without specific pronouncement at sentencing, the associated surcharge based on that fine, and an indigent legal assistance lien imposed without proper notice.


Headnotes

[1] A prison releasee reoffender designation requires that the defendant commit or attempt to commit certain enumerated felonies within three years after being released from…

[2] Release from temporary confinement does not support a prison releasee reoffender sentence.

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Key Quotes

“a PRR designation requires that the defendant commit or attempt to commit certain enumerated felonies "within 3 years after being released from a state correctional facility operated by the Department of Corrections...."”

Establishes the statutory requirement for PRR sentencing that Colson's case failed to meet

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Facts & Procedural History

Colson was convicted of robbery by jury verdict. The State sought to impose a PRR sentence based on a document showing a release date, but the record …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellant was convicted of robbery and sentenced to 15 years as a prison releasee reoffender (PRR). Following this Anders1 appeal, we affirm the appellant’s conviction, but reverse and remand for resentencing.

The appellant argues that he should be resentenced without the PRR designation. He alleges that the State’s document used to support the PRR sentence shows that he was released from prison over three years before the underlying robbery was committed. See § 775.082(9)(a)l, Florida Statutes (a PRR designation requires that the defendant commit or attempt to commit certain enumerated felonies “within 3 years after being released from a state correctional facility operated by the Department of Corrections....”). The record on appeal suggests that the date relied upon by the State in seeking the PRR designation was not the date the appellant was released from prison, but rather from tem*417porary confinement, which will not support a PRR sentence. See e.g., Brinson v. State, 851 So.2d 815, 816 (Fla. 2d DCA 2003). Accordingly, we remand for further consideration of the matter.

We also strike portions of the judgment for fines, costs, fees, and surcharges. The trial court orally pronounced “costs and fines” of $1522.50 without delineating the specific costs and fines included in this amount. The written judgment and sentence included a discretionary fine of $1050 pursuant to section 775.083, Florida Statutes, and an associated five-percent surcharge2 pursuant to section 938.04, Florida Statutes. As the fine was discretionary, it was error of the trial court to impose the fine without specifically pronouncing it at sentencing. Because the fine was erroneously imposed, the surcharge under section 938.04, which is based on the amount of the fine, must also be reversed.3 See Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). We also strike the $100 indigent legal assistance lien imposed pursuant to section 938.29, Florida Statutes, as the appellant was not provided with notice or advised of his right to contest this amount. See McCarthan v. State, 91 So.3d 268, 269 (Fla. 1st DCA 2012). On remand, the trial court may reimpose the stricken fine, surcharge, and fee after giving the appellant notice and following the proper procedure. See Kirkland v. State, 106 So.3d 4 (Fla. 1st DCA 2013) (indigent legal assistance fee); Nix, 84 So.3d at 426 (discretionary fines and surcharges).

We further instruct the court on remand to correct the scrivener’s error in the Criminal Punishment Code score sheet reflecting that the appellant entered a plea; the document should reflect that he was found guilty by jury verdict. See Drayton v. State, 89 So.3d 287 (Fla. 1st DCA 2012).

AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


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