Whack v. State

District Court of Appeal of Florida

Whack v. State

768 So. 2d 540, 2000 Fla. App. LEXIS 13288, 2000 WL 1513768

District Court of Appeal of Florida·Decided October 13, 2000·No. No. 5D99-3205·Published

Opinion

PER CURIAM.

Edmond Whack appeals his sentences which were imposed by the trial court after he was found guilty by a jury on two counts of robbery and one count of battery.

Over the objection of defense counsel, the trial court sentenced Mr. Whack to a term of twenty years incarceration as an habitual violent felony offender¹ on each of his two robbery convictions and then directed that the first fifteen years of each sentence would be served in accordance with the Prison Releasee Reoffender Act.² Mr. Whack raises two claims of error in relation to these sentences, one of which has merit.

Mr. Whack first argues that the Prison Releasee Reoffender Act is unconstitutional. However, the Act’s constitutionality was recently upheld in State v. Cotton, 769 So.2d 345 (Fla.2000).

He next contends that he could not be sentenced both as an habitual violent felony offender and as a prison releasee reof-fender on each of his robbery convictions. This court has recently held that such sentencing is improper and that the two statutory enhancements merely provide the state with alternative options to seek whichever enhancement will imprison the defendant for the longest term. See Lewis v. State, 751 So.2d 106 (Fla. 5th DCA 1999). Accord Willis v. State, 769 So.2d 1072 (Fla. 4th DCA 2000); Hamilton v. State, 752 So.2d 1274 (Fla. 4th DCA 2000). Accordingly, we vacate Mr. Whack’s 15-year prison releasee reoffender sentences while affirming the 20-year habitual violent felony offender sentence. We certify conflict with Alfonso v. State, 761 So.2d 1231 (Fla. 3d DCA 2000); Smith v. State, 754 So.2d 100 (Fla. 1st DCA 2000), and Grant v. State, 745 So.2d 519 (Fla. 2d DCA 1999), rev. granted, 761 So.2d 329 (Fla.2000), on the issue of whether a defendant can be sentenced as both an habitual violent felony offender and a prison releasee reoffender.

JUDGMENT AFFIRMED; SENTENCE AFFIRMED AS MODIFIED.

THOMPSON, C.J., GRIFFIN, J„ and ORFINGER, M., Senior Judge, concur.

Footnotes

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PER CURIAM.

Edmond Whack appeals his sentences which were imposed by the trial court after he was found guilty by a jury on two counts of robbery and one count of battery.

Over the objection of defense counsel, the trial court sentenced Mr. Whack to a term of twenty years incarceration as an habitual violent felony offender¹ on each of his two robbery convictions and then directed that the first fifteen years of each sentence would be served in accordance with the Prison Releasee Reoffender Act.² Mr. Whack raises two claims of error in relation to these sentences, one of which has merit.

Mr. Whack first argues that the Prison Releasee Reoffender Act is unconstitutional. However, the Act’s constitutionality was recently upheld in State v. Cotton, 769 So.2d 345 (Fla.2000).

He next contends that he could not be sentenced both as an habitual violent felony offender and as a prison releasee reof-fender on each of his robbery convictions. This court has recently held that such sentencing is improper and that the two statutory enhancements merely provide the state with alternative options to seek whichever enhancement will imprison the defendant for the longest term. See Lewis v. State, 751 So.2d 106 (Fla. 5th DCA 1999). Accord Willis v. State, 769 So.2d 1072 (Fla. 4th DCA 2000); Hamilton v. State, 752 So.2d 1274 (Fla. 4th DCA 2000). Accordingly, we vacate Mr. Whack’s 15-year prison releasee reoffender sentences while affirming the 20-year habitual violent felony offender sentence. We certify conflict with Alfonso v. State, 761 So.2d 1231 (Fla. 3d DCA 2000); Smith v. State, 754 So.2d 100 (Fla. 1st DCA 2000), and Grant v. State, 745 So.2d 519 (Fla. 2d DCA 1999), rev. granted, 761 So.2d 329 (Fla.2000), on the issue of whether a defendant can be sentenced as both an habitual violent felony offender and a prison releasee reoffender.

JUDGMENT AFFIRMED; SENTENCE AFFIRMED AS MODIFIED.

THOMPSON, C.J., GRIFFIN, J„ and ORFINGER, M., Senior Judge, concur.

Footnotes

Whack v. State, 768 So. 2d 540, 2000 Fla. App. LEXIS 13288, 2000 WL 1513768 (Fla. Ct. App. 2000).

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