Saulsberry v. State

Full title: LARRY SAULSBERRY, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Fourth District

Date published: Aug 9, 2000

No. 4D99-1680 (Fla. Dist. Ct. App. Aug. 9, 2000)

Opinion

No. 4D99-1680.

Opinion filed August 9, 2000.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 98-8637 CF10A.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

WARNER, C.J.

We withdraw our previously issued opinion and substitute the following in its place.

Appellant was convicted of indecent assault and sentenced as a prison releasee reoffender and, alternatively, as a habitual felony offender. We affirm appellant's conviction. However, the trial court erred in sentencing appellant alternatively under the Prison Releasee Reoffender Punishment Act, section 775.082(8), Florida Statutes (1997), and the Habitual Felony Offender Act, section 775.084, Florida Statutes (1997). See Mendez v. State, 25 Fla. L. Weekly D1325 (Fla. 4th DCA May 31, 2000). We therefore reverse the habitual offender sentence and order imposition of the prison releasee reoffender sentence, which in this case is the more severe sentence. See Adams v. State, 750 So.2d 659 (Fla. 4th DCA 1999). Because this is merely ministerial, the defendant does not have to be present for resentencing. See Farmer v. State, 670 So.2d 1143, 1144 (Fla. 1st DCA 1996).

As we did in Valentino v. State, No. 4D99-0968, 2000 WL 786622 (Fla. 4th DCA Jan. 21, 2000), West v. State, 758 So.2d 1230 (Fla. 4th DCA 2000), and Brooks v. State, 25 Fla. L. Weekly D1078 (Fla. 4th DCA May 3, 2000), we certify conflict with our sister courts in Alfonso v. State, No. 3D99-618, 2000 WL 873296 (Fla. 3d DCA July 5, 2000), rev. dismissed by, No. SC00-1249 (Fla. Jun. 21, 2000); Smith v. State, 754 So.2d 100 (Fla. 1st DCA 2000); and Grant v. State, 745 So.2d 519 (Fla. 2d DCA), review granted, No. SC99-164 (Fla. Apr. 12, 2000), on the issue of whether the double jeopardy clause precludes sentencing a defendant as both a prison releasee reoffender and a habitual felony offender.

Reversed and remanded for resentencing.

STONE and POLEN, JJ., concur.

NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.