ALLEN v. STATE (2008)

District Court of Appeal of Florida, First District.

Edward Bernard ALLEN, Appellant, v. STATE of Florida, Appellee.

No. 1D07–4744

Decided: June 24, 2008

Edward Bernard Allen, pro se, Appellant. Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

ON MOTION FOR REHEARING

We grant appellant's motion for rehearing, withdraw our opinion filed March 28, 2008, and issue this corrected opinion in its stead.

The appellant appeals the trial court's denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The second claim, that he was not properly charged by the state, is conclusively refuted by the record, and we affirm the trial court's denial of this claim. The appellant also argues that his two five-year sentences imposed for two convictions of battery on a law enforcement officer may not be enhanced by sentencing him as a prison releasee reoffender (“PRR”) because the offenses do not constitute forcible felonies. The appellant's claim has merit. See State v. Hearns, 961 So.2d 211 (Fla.2007); Witt v. State, 387 So.2d 922 (Fla.1980) (changes that place beyond the authority of the state the power to impose certain penalties are to apply retroactively); Johns v. State, 971 So.2d 271 (Fla. 1st DCA 2008). We therefore reverse and remand for resentencing.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PER CURIAM.

BENTON, LEWIS, and ROBERTS, JJ., concur.

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