Opinion
No. 4D99-3517.
Opinion filed April 25, 2001.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joyce A. Julian, Judge; L.T. Case No. 98-23709 CF10.
Affirmed in part, Reversed in part and Remanded.
Carey Haughwout, Public Defender, and Siobhan Helene Shea, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
Travis Underhill was convicted of robbery with a firearm and sentenced to life as a prison releasee reoffender, with a thirty-year minimum mandatory, and to life as an habitual felony offender, with a fifteen-year minimum mandatory. On appeal, Underhill challenges the trial court's admission of photographs of the scene of the robbery and contends that his dual designation as both a prison releasee reoffender (PRR) and an habitual felony offender (HFO) violates double jeopardy principles. We find no abuse of discretion in the admission of the photographs. As for Underhill's sentence, while the supreme court has rejected the contention that the dual designation violates double jeopardy principles, see Grant v. State, 770 So.2d 655 (Fla. 2000), as conceded by the State, such a dual designation is nonetheless prohibited where, as here, the HFO sentence is not harsher than the PRR sentence. See, e.g., Grant, 770 So.2d at 659; Hemmis v. State, 26 Fla. L. Weekly D540 (Fla. 4th DCA Feb. 21, 2001); Yehowshua v. State, 773 So.2d 654 (Fla. 4th DCA 2000). Accordingly, we reverse Underhill's sentence and remand this case to the trial court so that the HFO portion of the sentence may be stricken. Underhill need not be brought before the court for the sentence correction.
The minimum mandatory periods were included as part of the sentences in response to Underhill's 3.800(b) motion.
FARMER, STEVENSON and GROSS, JJ., Concur.