JEROME ELLINGTON, v. STATE OF FLORIDA
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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JEROME ELLINGTON, Appellant/Cross-Appellee, v. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D11-4488 STATE OF FLORIDA, Appellee/Cross-Appellant. _____________________________/ Opinion filed September 11, 2012. An appeal and cross-appeal from the Circuit Court for Leon County. William L. Gary, Judge. Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant/Cross-Appellee. Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant. PER CURIAM. We affirm Jerome Ellington s appeal of his judgment of conviction for felony battery. As to the issue raised on cross-appeal, however, we hold that the trial court erred when it failed to sentence appellant as a prison releasee reoffender. As a result, we vacate the sentence and remand for resentencing. It is well-settled that, once the State proves by a preponderance of the evidence that a defendant qualifies as a prison releasee reoffender, the trial court must sentence the defendant in accordance with the provisions of section 775.082(9), Florida Statutes. See State v. Cotton, 769 So. 2d 345 (Fla. 2000); Johnson v. State, 766 So. 2d 480, 481-82 (Fla. 5th DCA 2000). A trial court does not have discretion to depart from the sentence mandated by section 775.082(9), and the refusal to impose the mandatory minimum sentence is error as a matter of law. See State v. Garcia, 923 So. 2d 1186 (Fla. 3d DCA 2006); State v. Smith, 832 So. 2d 249 (Fla. 5th DCA 2002). Appellant s conviction for felony battery for intentionally touching or striking another against her will causing great bodily harm, permanent injury or permanent disfigurement qualified appellant for sentencing as a prison releasee reoffender. See Brooks v. State, __ So. 3d __, 37 Fla. L. Weekly D1570 (Fla. 2d DCA June 29, 2012). Indeed, the record reflects that the defense acknowledged and that the trial court found that appellant qualified for sentencing as a prison releasee reoffender. Yet, the trial court believed it had discretion as to whether appellant was so sentenced. As noted, the trial court did not possess such discretion. Garcia; Smith. 2 Accordingly, the sentence is vacated, and the cause is remanded for resentencing consistent with this opinion. VAN NORTWICK, CLARK, and RAY, JJ., CONCUR. 3
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