Opinion
Case No. 2D00-693.
Opinion filed January 22, 2003.
Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.
James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
Charlie Crist, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
Jerry Swiggum challenges the sentences imposed after he pleaded guilty to burglaries of two dwellings, dealing in stolen property, and grand theft. He filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b), raising these errors with the circuit court. Because the court never ruled on his motion, it is presumed denied. Fla.R.Crim.P. 3.800(b)(1)(B). Therefore, Swiggum has preserved the alleged errors for appeal.
Swiggum was sentenced as a prison releasee reoffender and a habitual offender for the two burglaries. These offenses were committed in May and June 1998. At the time of his crimes, a PRR sentence could be imposed only if the burgled dwelling was occupied. State v. Huggins, 802 So.2d 276 (Fla. 2001). The State did not present evidence of occupancy, but at the time of Swiggum's sentencing, Huggins had not been decided. We therefore remand for a new sentencing hearing under the procedure adopted in Rowan v. State, 791 So.2d 40 (Fla.2d DCA 2001). The court should review the record to determine whether it supports a finding that the dwelling was occupied. If the record is unclear, the court may conduct a limited evidentiary hearing on this issue. If the evidence supports a finding of occupancy, the court may resentence Swiggum as a PRR. In that case, it must strike the concurrent habitual offender sentence. Grant v. State, 770 So.2d 655, 659 (Fla. 2000) (holding that sentencing a defendant to concurrent, equal terms as a habitual offender and a prison releasee reoffender violates the Prison Releasee Reoffender Punishment Act). If the evidence or the record supports a finding that the dwelling was not occupied, Swiggum cannot be sentenced as a PRR. In that event, because the plea agreement cannot be enforced, the State should be given the option of invalidating the plea or agreeing to a sentence without the PRR enhancement. Caddo v. State, 806 So.2d 520 (Fla.2d DCA 2001).
Swiggum's sentence for dealing in stolen property cannot stand for two reasons. First, the written sentence does not comport with the court's oral pronouncement of sentence. The court stated it was sentencing Swiggum as a prison releasee reoffender, but the written document reflects a violent career criminal sentence. Dealing in stolen property is not an enumerated offense under either of these sentencing schemes. § 775.082(8)(a)(1), .084(1)(c), Fla. Stat. (1997). As such, these sentences must be stricken. Second, the court also sentenced Swiggum as a habitual offender for this crime. The fifteen-year sentence the court imposed is legal, but the minimum mandatory term is not. § 775.084(4)(a). We therefore reverse this sentence and remand for the court to impose the fifteen-year HFO sentence without the minimum mandatory term.
On the grand theft counts, again, the written sentence differs from the court's oral pronouncement. The court orally imposed a ten-year HFO sentence. § 775.084(4)(a)(3). This sentence is legal. But according to the written documents, Swiggum was sentenced to fifteen years as a PRR. The crime of grand theft does not qualify for PRR sentencing. § 775.082(8)(a)(1). We reverse with directions that the court impose the term it orally announced.
Reversed and remanded with directions.
STRINGER and SILBERMAN, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED