DUDLEY v. STATE (2001)

District Court of Appeal of Florida,Second District.

Roosevelt DUDLEY, Appellant, v. STATE of Florida, Appellee.

No. 2D00-5433.

Decided: December 19, 2001

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

Roosevelt Dudley appeals his conviction and sentence for burglary of a dwelling, a second-degree felony. We affirm, but write in order to avoid any future confusion by the Department of Corrections concerning Dudley's sentence.

At the sentencing hearing, the trial court found that Dudley qualified to be sentenced as a prison releasee reoffender (PRR), pursuant to section 775.082(9)(a)(1), Florida Statutes (2000). The written sentence provided that Dudley was to be incarcerated for fifteen years; however, it did not indicate that he was to be sentenced as a PRR. Because Dudley was found guilty of burglary of a dwelling, but the jury did not make a determination that the dwelling was occupied, Dudley could not be sentenced as a PRR. See Parker v. State, 799 So.2d 282, (Fla. 2d DCA 2001). The fifteen-year term of imprisonment was nonetheless legal and not a departure sentence pursuant to the applicable provision of the criminal punishment code, section 921.002(1)(g), Florida Statutes (2000). See Willingham v. State, 781 So.2d 512 (Fla. 5th DCA 2001).

Affirmed.

SALCINES, Judge.

WHATLEY, A.C.J., and CASANUEVA, J., concur.

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