Christopher v. State

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IN THE DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA MATTHEW CHRISTOPHER, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) _________________________________ ) Case No. 2D00-5296 BY ORDER OF THE COURT: Appellant's motion for rehearing is granted. The opinion issued on May 8, 2002, is withdrawn and the attached opinion is substituted. Appellant's motion for rehearing en banc is denied. I HEREBY CERTIFY THAT THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER. James Birkhold Clerk cc: Anthony C. Musto Katherine Coombs Cline NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MATTHEW CHRISTOPHER, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) _________________________________ ) Case No. 2D00-5296 Opinion filed August 2, 2002. Appeal from the Circuit Court for Pinellas County; Mark I. Shames, Judge. James Marion Moorman, Public Defender, and Anthony C. Musto, Assistant Public Defender, Bartow, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee. NORTHCUTT, Judge. Matthew Christopher challenges his conviction and sentence for burglary of a dwelling. We affirm the conviction without comment. We agree with Christopher's assertion that he should not have been sentenced under the Prison Releasee Reoffender Punishment Act (PRRPA), section 775.082(9)(a)(1)(q), Florida Statutes (2000). The information filed against Christopher charged that he burglarized a dwelling. It did not specify that the dwelling was occupied, nor did the jury make a factual determination that the dwelling was occupied when Christopher committed his offense. Under these circumstances, his offense did not qualify for PRRPA sentencing. Weems v. State, 795 So. 2d 122, 125 (Fla. 1st DCA 2001). See also Dudley v. State, 802 So. 2d 461, 462 (Fla. 2d DCA 2001); Parker v. State, 799 So. 2d 282, 283 (Fla. 2d DCA 2001). Affirmed in part; reversed in part and remanded for resentencing. SALCINES and KELLY, JJ., Concur. -2-

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