Opinion
No. 2D99-1017
Opinion filed October 18, 2000
Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.
Affirmed, conflict certified.
James Marion Moorman, Public Defender, and Joan Fowler, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
BY ORDER OF THE COURT:
Having considered the Appellant's motion for rehearing, the motion is granted, the prior opinion filed June 9, 2000, is withdrawn, and the attached opinion is substituted therefor.
Keith Edward Jones appeals three consecutive sentences, each of fifteen years' imprisonment, as a habitual felony offender and a prison releasee reoffender. We affirm.
Mr. Jones was convicted of three counts of lewd and lascivious act on a child. Each count involved a separate victim and a different act. Although all three crimes occurred at the same beach on the same day, the offenses were sufficiently distinct to permit the imposition of consecutive habitual felony offender sentences. See Spratling v. State, 672 So.2d 54 (Fla. 1st DCA 1996); Smith v. State, 632 So.2d 95 (Fla. 2d DCA 1994). Similarly, we see no lawful basis to prohibit consecutive prison releasee reoffender sentences under these circumstances.
Mr. Jones also asserts that the Prison Releasee Reoffender Punishment Act is unconstitutional for a variety of reasons. See ch. 97-239, Laws of Fla., codified in part in § 775.082(8), Fla. Stat. (1997). The supreme court, however, has recently held that the Act is not overbroad, and does not violate the constitutional guarantees of separation of powers, freedom from cruel or unusual punishment, due process, or equal protection. See State v. Cotton, 25 Fla. L. Weekly S463 (Fla. June 15, 2000), revised by 25 Fla. L. Weekly S536 (Fla. June 28, 2000). This court has held that the Act does not violate the single-subject rule, is not an ex post facto law, and that a sentence as both a prison releasee reoffender and a habitual felony offender does not violate the prohibition against double jeopardy. See Grant v. State, 745 So.2d 519 (Fla. 2d DCA 1999),review granted, 761 So.2d 329 (Fla. 2000). But see Adams v. State, 750 So.2d 659 (Fla. 4th DCA 1999) (holding sentence as both prison releasee reoffender and habitual felony offender violates double jeopardy). We thus affirm the sentences imposed, but certify conflict with Adams.
NORTHCUTT and DAVIS, JJ., Concur.