McCoy v. State

District Court of Appeal of Florida

McCoy v. State

838 So. 2d 1211, 2003 Fla. App. LEXIS 2565, 2003 WL 728339

CourtDistrict Court of Appeal of Florida

DecidedMarch 5, 2003

DocketNo. 2D01-4887

StatusPublished

This text of 838 So. 2d 1211 (McCoy v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCoy v. State, 838 So. 2d 1211, 2003 Fla. App. LEXIS 2565, 2003 WL 728339 (Fla. Ct. App. 2003).

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Opinion

SALCINES, Judge.

James McCoy appeals the sentences imposed upon remand for two separate burglaries. We affirm the sentence imposed for the burglary in count two without further comment and reverse the sentence imposed for count one.

McCoy was originally charged in count one with armed burglary of a dwelling. McCoy was convicted and sentenced to life for this offense. McCoy appealed the conviction. This court determined that the evidence did not support the conviction and directed the trial court to enter judgment for the lesser offense of burglary of a dwelling and to resentence McCoy. McCoy v. State, 789 So.2d 489 (Fla. 2d DCA 2001). On remand, the trial court sentenced McCoy to thirty years’ imprisonment as a habitual felony offender and as a prison releasee reoffender for the count one burglary.

McCoy argues that the trial court erred when it imposed a prison releasee reoffen-der sentence for the burglary of an unoccupied dwelling. See Dudley v. State, 802 So.2d 461 (Fla. 2d DCA 2001); Parker v. State, 799 So.2d 282 (Fla. 2d DCA 2001). McCoy was not charged with burglary of an occupied dwelling, and the jury did not make a finding that the dwelling was occupied at the time of the burglary. The State concedes that McCoy could not be sentenced as a prison releasee reoffender under these circumstances and that he must be resentenced on count one to omit this designation.

Accordingly, the sentence of thirty years’ imprisonment as a habitual offender and as a prison releasee reoffender imposed for count one is reversed. On remand, the trial court shall impose a sentence, for count one, of thirty years’ imprisonment as a habitual offender only.

[1212]*1212Affirmed in part, reversed in part, and remanded.

FULMER and STRINGER, JJ., Concur.

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SALCINES, Judge.

James McCoy appeals the sentences imposed upon remand for two separate burglaries. We affirm the sentence imposed for the burglary in count two without further comment and reverse the sentence imposed for count one.

McCoy was originally charged in count one with armed burglary of a dwelling. McCoy was convicted and sentenced to life for this offense. McCoy appealed the conviction. This court determined that the evidence did not support the conviction and directed the trial court to enter judgment for the lesser offense of burglary of a dwelling and to resentence McCoy. McCoy v. State, 789 So.2d 489 (Fla. 2d DCA 2001). On remand, the trial court sentenced McCoy to thirty years’ imprisonment as a habitual felony offender and as a prison releasee reoffender for the count one burglary.

McCoy argues that the trial court erred when it imposed a prison releasee reoffen-der sentence for the burglary of an unoccupied dwelling. See Dudley v. State, 802 So.2d 461 (Fla. 2d DCA 2001); Parker v. State, 799 So.2d 282 (Fla. 2d DCA 2001). McCoy was not charged with burglary of an occupied dwelling, and the jury did not make a finding that the dwelling was occupied at the time of the burglary. The State concedes that McCoy could not be sentenced as a prison releasee reoffender under these circumstances and that he must be resentenced on count one to omit this designation.

Accordingly, the sentence of thirty years’ imprisonment as a habitual offender and as a prison releasee reoffender imposed for count one is reversed. On remand, the trial court shall impose a sentence, for count one, of thirty years’ imprisonment as a habitual offender only.

[1212]*1212Affirmed in part, reversed in part, and remanded.

FULMER and STRINGER, JJ., Concur.

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838 So. 2d 1211, 2003 Fla. App. LEXIS 2565, 2003 WL 728339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccoy-v-state-fladistctapp-2003.

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