Wilcox v. State

Full title: MAURICE M. WILCOX, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, First District

Date published: Mar 15, 2001

No. 1D99-4874 (Fla. Dist. Ct. App. Mar. 15, 2001)

Opinion

No. 1D99-4874.

Opinion filed March 15, 2001.

An appeal from the Circuit Court for Alachua County. Peter K. Sieg, Acting Circuit Judge.

Affirmed.

Nancy A. Daniels, Public Defender; and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

Maurice M. Wilcox, pro se.

Robert A. Butterworth, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant, Maurice M. Wilcox, seeks review of his conviction and sentence for burglary of a dwelling. Finding no reversible error, we affirm.

We write only to address appellant's challenges to the constitutionality of the Prison Releasee Reoffender Punishment Act, section 775.082, Florida Statutes (1999). He contends that this act violates the separation of powers clause. The Supreme Court of Florida has held that the act is "not unconstitutional on its face as violative of separation of powers principles." State v. Cotton, 769 So.2d 345, 354 (Fla. 2000). Appellant's second challenge to the act is that his conviction for burglary of a dwelling does not statutorily qualify for PRR sentencing because the dwelling was unoccupied. As we did in Foresta v. State, 751 So.2d 738 (Fla. 1st DCA 2000), rev. granted, 767 So.2d 456 (Fla. May 23, 2000), we hold that the Prison Releasee Reoffender Act applies to a sentence for burglary of an unoccupied dwelling and certify conflict with the Fourth District's opinion in State v. Huggins, 744 So.2d 1215 (Fla. 4th DCA 1999), rev. granted, 761 So.2d 332 (Fla. Mar. 20, 2000). See State v. Young, 766 So.2d 425 (Fla. 1st DCA 2000);Hicks v. State, 755 So.2d 815 (Fla. 1st DCA 2000); Heath v. State, 753 So.2d 795 (Fla. 1st DCA 2000); see also Medina v. State, 758 So.2d 113 (Fla. 2d DCA 2000) rev. granted, 760 So.2d 947 (Fla. May 4, 2000) (recognizing that the Florida Supreme Court has stated in Perkins v. State, 682 So.2d 1083, 1084-1085 (Fla. 1996) that occupancy is no longer an element of the crime of burglary of a dwelling and holding that burglary of a dwelling, whether occupied or not, is a qualifying offense under the Act); Whiten v. State, 765 So.2d 309 (Fla. 5th DCA 2000) (holding that the dwelling need not be occupied at the time of the burglary for the Act to apply).

We affirm on all other issues without discussion.

Davis, Padovano and Browning, JJ., Concur. Padovano, J., Concurs with written opinion; Browning, J., Concurs with Padovano, J., written opinion.

Padovano, J. Concurring.

Although I join in the decision, I think that the precedent foreclosing the defendant's second argument should be re-examined. We held in Foresta v. State, 751 So.2d 738 (Fla. 1st DCA 2000) that the Prison Releasee Reoffender statute applies to a defendant convicted of burglary of an unoccupied dwelling. We gave no rationale for this holding other than to say that we agreed with the decisions of the Second District Court of Appeal in State v. Chamberlain, 744 So.2d 1185 (Fla. 2d DCA 1999) andState v. White, 736 So.2d 1231 (Fla. 2d DCA 1999). Chamberlain relied onWhite which, in turn, relied on the decision of the Fourth District Court of Appeal in Scott v. State, 721 So.2d 1245 (Fla. 4th DCA 1998). However, Scott was later overruled by the unanimous en banc decision of the Fourth District Court of Appeal in State v. Huggins, 744 So.2d 1215 (Fla. 4th DCA 1999). Consequently, it appears to me that Foresta and all of the other cases holding that the statute applies to burglary of an unoccupied dwelling are traceable to a decision that is no longer good law. I agree with the more recent opinion of the Fourth District Court of Appeal in Huggins and would adopt it as the law in this court.