Brooks v. State

764 So. 2d 676, 2000 Fla. App. LEXIS 6570, 2000 WL 690286

Opinion

FARMER, J.

We affirm defendant’s conviction for burglary of an unoccupied dwelling. The state adduced sufficient evidence of entry without permission to send the case to the jury.

Although defendant did not object to sentencing under the Prison Releasee Reoffender Act, sentencing under an improper statute that imposes harsher punishment than would be applied under the proper statute is fundamental error. Salters v. State, 758 So.2d 667 (Fla.2000). As we did in Robinson v. State, 766 So.2d 283 (Fla. 4th DCA 2000), we therefore reverse defendant’s PRR sentence because burglary of an unoccupied dwelling is not one of the qualifying offenses for such sentencing.

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.

KLEIN and STEVENSON, JJ., concur.