Medina v. State

786 So. 2d 1260, 2001 Fla. App. LEXIS 8101, 2001 WL 669311

Opinion

SILBERMAN, Judge.

Following a jury trial, Jose Angel Medina was found guilty of burglary of a dwelling, aggravated assault with a deadly weapon, and felony petit theft. For the burglary, Medina was sentenced to fifteen years’ imprisonment pursuant to the Prison Releasee Reoffender Act (PRRA), section 775.082(9)(a)(l), Florida Statutes (Supp.1998). He correctly argues that the sentence for burglary must be reversed because the PRRA does not apply to burglary of an unoccupied dwelling. State v. Huggins, 26 Fla. L. Weekly S174, — So.2d —, 2001 WL 278107 (Fla. Mar. 22, 2001).

The State argues that the burglary was still in progress when the victim returned to Ms house and, therefore, the dwelling should be considered to be occupied. We disagree. The record reflects that Medina had left the house before the victim arrived. The victim observed Medina walking some fifty to sixty feet down the street with some of the victim’s possessions.

We affirm Medina’s judgment, but as to the burglary we reverse and remand for resentencing consistent with Huggins.

FULMER, A.C.J., and WHATLEY, J., Concur.