Opinion
No. 4D00-2244.
March 6, 2002.
Appeal from the Circuit Court, Martin County, Larry Schack, J.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Kristine Keaton, Assistant Attorney General, Fort Lauderdale, for appellee.
The trial court's application of the Prison Releasee Reoffender Act to the defendant's conviction of burglary of an unoccupied dwelling creates the issue for review.
In State v. Huggins, 802 So.2d 276 (Fla. 2001), the Florida Supreme Court held that the 1997 version of the Prison Releasee Reoffender Act, section 775.082(8), Florida Statutes does not apply to convictions for burglary of an unoccupied dwelling. Neither the allegations in the information charging the defendant nor the proof at trial established that the dwelling was occupied. In fact, the evidence established that the dwelling was unoccupied at the time of the burglary.
The State concedes that the sentence under the 1997 Prison Releasee Reoffender Act was error as to the burglary count. The defendant's sentence on this count is therefore reversed and remanded to the trial court for resentencing.
We find no merit to the other issues raised in this appeal.
POLEN, C.J., HAZOURI and MAY, JJ., concur.