Summary
In Dubose v. State, 834 So.2d 423 (Fla. 2d DCA 2003), the court considered whether consecutive sentences were permissible where a PRR sentence was to run consecutive to a non-PRR sentence.
Summary of this case from Powell v. StateOpinion
Case No. 2D01-4291
Opinion filed January 17, 2001.
Appeal from the Circuit Court for Hillsborough County; J. Rogers Padgett, Judge.
James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
Charlie Crist, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
Dwight Dubose appeals from his convictions for first-degree murder and attempted robbery. We affirm the convictions but reverse and remand for resentencing.
Dubose was originally sentenced to life on the first-degree murder conviction followed by a consecutive sentence of five years on the attempted robbery conviction. Both sentences were imposed under section 775.082, Florida Statutes (2001), the prison releasee reoffender (PRR) statute. In response to a motion filed pursuant to Florida Rule of Appellate Procedure 3.800(b)(2), the trial court set aside the PRR designation on the life sentence. The consecutive five-year PRR sentence was not amended.
Dubose argues that the trial court erred in running the five-year PRR sentence consecutive to his life sentence. We agree. In Hall v. State, 821 So.2d 1154 (Fla. 2d DCA 2002), the defendant was ordered to serve a habitual violent felony offender sentence of thirty years consecutively to a nonhabitual life sentence. This court stated that Hall was entitled to serve his habitual sentence first " `in order to preserve [Hall's] entitlement, if any, to control release.' " Id. at 1155 (quoting Smith v. State, 632 So.2d 95, 97 (Fla. 2d DCA 1994)); see also Ricardo v. State, 608 So.2d 93 (Fla. 2d DCA 1992); § 947.146, Fla. Stat. (2001) (authorizing control release). The same reasoning applies to PRR sentencing. As with a defendant who is given a habitual offender sentence, a defendant who is sentenced pursuant to the PRR statute is severely restricted in his opportunity to earn gain time or otherwise serve less than the entire sentence. See § 775.082(9)(b). Thus, in order to preserve entitlement to any possible early release that may apply to the non-PRR sentence, Dubose must be allowed to serve his PRR sentence first.
Therefore, we reverse Dubose's sentence and remand with directions that he be resentenced in accordance with this opinion. Dubose need not be present for the resentencing.
Reversed and remanded with directions.
BLUE, C.J., and STRINGER, JJ., Concur.