Opinion
No. 1D98-1138.
Opinion filed August 1, 2000.
An appeal from the Circuit Court for Duval County, Brad Stetson, Judge.
Nancy A. Daniels, Public Defender; Fred Parker Bingham II, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
Cecil Randall (Randall) raises several issues on appeal, one of which challenges his sentence as an habitual felony offender and reoffender; the reoffender sentence was imposed pursuant to the Prison Releasee Reoffender Punishment Act, section 775.082, Florida Statutes (1997) (the PRR act). Because Randall was sentenced to twenty-six years for unarmed robbery under the PRR act and fifteen years is the maximum sentence under this act, we reverse and remand for resentencing as a prison releasee reoffender. Smith v. State, 754 So.2d 100 (Fla. 1st DCA 2000). We affirm in all other respects, including Randall's twenty-six-year sentence as an habitual felony offender.
ALLEN and LAWRENCE, JJ., CONCUR. BENTON, J., CONCURS WITH OPINION.
The present case asks the question how many sentences ought to be pronounced for a single crime. Upholding appellant's habitual offender sentence for unarmed robbery, a sentence of twenty-six years — at least eighty-five per cent of which appellant must actually serve, see § 944.275(4)(b)3., Fla. Stat. (1997) — the court today remands for imposition of a second, concurrent sentence for the same robbery, albeit a second sentence not to exceed fifteen years. Imposition of a concurrent fifteen-year sentence on remand will have no practical significance.
But I do not read the Prison Releasee Reoffender Act (or any other statute) as authorizing more than one sentence for this robbery. See Lewis v. State, 751 So.2d 106, 107 (Fla. 5th DCA 1999). If I were not constrained by precedent, therefore, I would dissent from today's remand for resentencing under the Prison Releasee Reoffender Act, even though I share the majority's view that the sentence imposed under that Act must be vacated.
It was decided in Smith v. State, 754 So.2d 100, 101 (Fla. 1st DCA 2000), that a "HFO sentence with a 15-year minimum mandatory under the PRR Act does not violate Double Jeopardy." Contra Adams v. State, 750 So.2d 659, 661 (Fla. 4th DCA 1999). Compare Dragani v. State, 25 Fla. L. Weekly D1341, D1341 (Fla. 5th DCA June 1, 2000), with Alfonso v. State, 25 Fla. L. Weekly D1016, D1016 (Fla. 3d DCA Apr. 26, 2000). While I would not have reached the constitutional question in Smith, see Lewis, 751 So.2d at 107 — and believe the question was wrongly decided there, see Adams, 750 So.2d at 661; Melton v. State, 746 So.2d 1188, 1188 (Fla. 4th DCA 1999); Glave v. State, 745 So.2d 1065, 1065 (Fla. 4th DCA 1999) — I am bound by Smith, which authorizes imposition of a concurrent sentence under the Prison Releasee Reoffender Act. See Grant v. State, 745 So.2d 519 (Fla. 2d DCA 1999), review granted, SC99-164 (Fla. Apr. 12, 2000).